Rogelio C.

Lascoa Jr
Wills and Succession 2nd Batch

June 15, 2015

1. TORRES vs LOPEZ
G.R. No. L-24569
February 26, 1926
MANUEL TORRES, petitioner-appellant and
LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.
FACTS:
1) Tomas Rodriguez died. Manuel Torres, one of the executors named in the will asked that the will of
Rodriguez be allowed.
2) Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds:
(1) That the testator lacked mental capacity because at the time of senile dementia and was
under guardianship;
(2) that undue influence had been exercised by the persons benefited in the document in
conjunction with others who acted in their behalf; and
(3) that the signature of Tomas Rodriguez to the document was obtained through fraud and
deceit.
3) On certain facts pertaining to the condition of Tomas Rodriguez while he was living and when he
made the will:
- Rodriguez had reached the advanced age of 76 years.
- He was suffering from anemia, hernia inguinal, chronic dypsia, and senility. Physically he was a
wreck.
4) As to the mental state of Tomas Rodriguez on January 3, 1924:
- Doctors Calderon, Domingo and Herrera admit that he was senile.
- They, together with Doctors De los Angeles, Tietze, and Burke, further declare that his memory
however for remote events was generally good. He was given to irrational exclamations
symptomatic of a deceased mind.
- While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of
the patient are "sound, except that his memory is weak," and that in executing the will the
testator had full understanding of the act he was performing and full knowledge of the contents
thereof.
- Doctors De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind
and that they diagnosed his case as senile dementia of the simple type approaching the
deteriorated stage.
Lower Court denied the legalization of the will.
ISSUE:
Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he
passed so far along in senile dementia as to require the court to find him of unsound? Will is
valid.
RULING:
Applicable Law:
- The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator
be of "sound mind". A "sound mind" is a "disposing mind."
- One of the grounds for disallowing a will is "If the testator wasinsane or otherwise mentally
incapable of the execution."
Definition of testamentary capacity: "'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.'"
- The mental capacity of the testator is determined as of the date of the execution of his will.
Of the specific tests of testamentary capacity:
- neither old age, physical infirmities, feebleness of mind, weakness of the memory, the
appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary
incapacity. Each case rests on its own facts and must be decided by its own facts.
There is one particular test relative to the capacity to make a will which is of
some practical utility:
- This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it
natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will
was the offspring of an unsound mind.

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in
order that all facts may be brought out which will assist in determining the question.
The testimony of subscribing witnesses to a will concerning the testator's mental condition is entitled
to great weight where they are truthful and intelligent. The evidence of those present at the execution
of the will and of the attending physician is also to be relied upon.
The presumption is that every adult is sane. It is only when those seeking to overthrow the will have
clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document.
Bugnao vs. Ubag Testamentary incapacity does not necessarily require that a person shall actually
be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age, from
disease, or great bodily infirmities of suffering, or from all these combined, may render the testator in
capable of making a valid will, providing such weakness really disqualifies for from knowing or
appreciating the nature, effects, or consequences of the act she is engaged in.
Nagtas vs. Paquio The rule is thus stated:
a) The question is not so much, what was the degree of memory possessed by the testator as had, he a
disposing memory? Was he able to remember the property he was about to bequeth the manner of
distributing it and the object of his bounty? In a word, were his mind and memory sufficiently sound to
enable him to know and understand the business in which he was engaged at the time when he
executed his will.'
b) While the inability of a person of advanced years to remember recent events distinctly undoubtedly
indicates a decay of the human faculties, it does not conclusively establish senile dementia, which is
something more than a mere loss of mental power, resulting from old age and is not only a feeble
condition of the mind but a derangement thereof. . . .
o The rule is settled in this state that if a testator at the time he executes his will understand the
business in which he is engaged and has a knowledge of his property and how he wishes to
dispose of it among those entitled to his bounty, he possess sufficient testamentary capacity,
notwithstanding his old age, sickness debility of body, or extreme distress.
CASE AT BAR:
Mental Condition:
- Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in
which the will was executed and to the testator's mental condition.
- The other subscribing witness, also, a physician on the contrary testified to a fact which, if
substantiated, would require the court to disallow the will.
- The attending physician and three other eminent members of the medical fraternity, who were
present at the execution of the will, expressed opinions entirely favorable to the capacity of the
testator.
- As against this we have the professional speculations of three other equally eminent members
of the medical profession when the will was executed. The advantage on those facts is all with
those who offer the will for probate.
WILL:
- The will was short. It could easily be understood by a person in physical distress.
- It was reasonable, that is, it was reasonable if we take into account the evident prejustice of the
testator against the husband of Margarita Lopez.
With special reference of the definition of testamentary capacity, we may say
this:
- On January 3, 1924, Tomas Rodriguez, in our opinion comprehended the nature of the
transaction in which he was engaged.
- He had two conferences with his lawyer, Judge Mina, and knew what the will was to contain.
The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper
places at the bottom and on the left margin.
- At that time the testator recollected the property to be disposed of and the persons who would
naturally be supposed to have claims upon him While for some months prior to the making of the
will he had not manage his property he seem to have retained a distinct recollection of what it
consisted and of his income.
- Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he
knew who they were, he seemed to entertain a predilection towards Vicente F. Lopez as would be
natural since Lopez was nearest in which the instrument distributed the property naming the
objects of his bounty. His conversations with Judge Mina disclosed as insistence n giving all of his
property to the two persons whom he specified.
Tomas Rodriguez may have been of advanced years, may have been physically decrepit, may have
been weak in intellect, may have suffered a loss of memory, may have had a guardian and may have a
been extremely eccentric, but he still possessed the spark of reason and of life, that strength of mind to
form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law
terms "testamentary capacity."

Other topic:
There was no undue influence:
Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently
became his guardian.
o There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence
in Vicente F. Lopez and his daughter Luz Lopez de Bueno.
o Again, it was Vicente F. Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to
prepare the will, and it was Luz Lopez de Bueno who appears to have gathered the witnesses
and physicians for the execution of the will.
o This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to
who could be admitted to see the patient.
It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon, Domingo,
Herrera, and De Asis and Mr. Legarda would so demean themselves and so fully their characters and
reputation as to participate in a scheme having for its purpose to delude and to betray an old man in his
age, rather named was acting according to the best of his ability to assist in a legitimate act in a
legitimate manner.
Moreover, considering the attitude of Tomas Rodriguez towardMargarita Lopez and her husband and
his apparent enmity toward them, it seems fairly evident that even if the will had been made in
previous years when Rodriguez was more nearly in his prime, he would have prepared somewhat a
similar document.
TORRES vs LOPEZ
G.R. No. L-24569
February 26, 1926
Topic/Doctrine: Testamentary Capacity and Intent
FACTS:
In 1924, Tomas Rodriguez died in the City of Manila Philippine Islands leaving a considerable estate.
Manuel Torres, one of the executors named in the will asked that the will of Rodriguez be allowed.
Opposition was entered by Margarita Lopez, the first cousin of the deceased on the grounds: (1) That
the testator lacked mental capacity because at the time of senile dementia and was under
guardianship; (2) that undue influence had been exercised by the persons benefited in the document in
conjunction with others who acted in their behalf; and (3) that the signature of Tomas Rodriguez to the
document was obtained through fraud and deceit.
After a prolonged trial, judgment was rendered denying the legalization of the will. In the decision of the
trial judge appeared, among others:
The topics suggested by the assignments of error Testamentary Capacity and Undue
Influence
will be taken up separately and in order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and second to make findings of law
and the law by rendering judgment.
I. TESTAMENTARY CAPACITY
FACTS:
For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown was
undoubtedly due to organic weakness, to advancing years and to an accident which occurred in 1921
(Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez designated Vicente F.
Lopez as the administrator of his property (Exhibit 7).
On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a
guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed by
Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was
far from strong on account of his years, he was yet capable of looking after his property with the
assistance of his administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a
perusal of the same shows that he was able to answer nearly all of the questions propounded
intelligently). At the conclusion of the hearing, an order was declaring Tomas Rodriguez incapacitated to
take care of himself and to manage his property and naming Vicente F. Lopez as his guardian.
Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to
remain sick in bed until his death. On the door of the patients room was placed a placard reading No
visitors, except father, mother, sisters, and brothers. (Permitted to visit the patient only the following
named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno, Remedio Lopez,
Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta ((Exhibit 9). The
list did not include the names of Margarita Lopez and her husband Antonio Ventura. Indeed the last
named persons experienced considerable difficulty in penetrating in to the room of Rodriguez.

Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital ,
Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who
then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing
him to prepare the will
As the witness stated, the will which was prepared by him is identical with that signed by the testator
and the attesting witnesses with the single exception of the change of the date from December 31,
1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and
simple in terminology.
On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the Philippine
General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias Fernando Calderon,
Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of observation. (Testimony
of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno and Mrs.
Nena Lopez were present; at least they were hovering in the background.
Not even prior to demise of the deceased, the two actions in the Lopez family had prepared themselves
for a fight over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the
physician in charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of
Nervous and Mental Diseases in the University of the Philippines, as attending physician; as associated
with him for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General
Hospital and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had
arranged to have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting
witnesses. The Margarita Lopez faction had taken equal precautions by calling a witnesses in the
guardship proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine
in the University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases;
thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by
associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled lawyers
were available to aid and abet the medical experts. Out of such situations, do will contests arise.
An examination of the certificates made by the two sets of physicians and of their testimony shows that
on most facts they concur. Their deductions from these facts disclose a substantial divergence of
opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who
honestly arrived at definite but contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los
Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before the
date when the will was executed. All of them, as we have noticed were, present at the signing of the will
to note the reactions of the testator
Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas
Rodriguez.
Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke.
Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the patient of
November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case and had
visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze and Burke
together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians conducted a joint
examination result.
Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the treatment
record kept daily by the nurses, in which appear the nurses remarks.
On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3, 1924,
Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia inguinal,
chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and Herrera
admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare
that his memory however for remote events was generally good. He was given to irrational
exclamations symptomatic of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the
patient are sound, except that his memory is weak, and that in executing the will the testator had full
understanding of the act he was performing and full knowledge of the contents thereof, Doctors De Los
Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they diagnosed
his case as senile dementia of the simple type approaching the deteriorated stage.
The Code of Civil Procedure prescribes as a requisite to the
sound mind A sound mind is a disposing mind. One of
testator was insane or otherwise mentally incapable of the
provisions, this court has adopted the following definition

allowance of a will that the testator be of

the grounds for disallowing a will is If the
execution. Predicated on these statutory
of testamentary capacity: 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. The mental capacity of the testator is determined as of
the date of the execution of his will (Civil Code, art. 666).
On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order
that all facts may be brought out which will assist in determining the question. The testimony of
subscribing witnesses to a will concerning the testators mental condition is entitled to great weight
where they are truthful and intelligent. The evidence of those present at the execution of the will and of
the attending physician is also to be relied upon. The presumption is that every adult is sane. It is only
when those seeking to overthrow the will have clearly established the charge of mental incapacity that
the courts will intervene to set aside a testamentary document.
Counsel for the appellee make capital of the testator being under guardianship at the time he made his
will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect
of the judgment is conclusive with respect to the condition of the person. To this statement we cannot
write down our conformity. The provisions of the cited section were taken from California, and there the
Supreme court has never held what is now urged upon us by the appellee. The rule announced that in
some states, by force of statute, the finding of insanity is conclusive as to the existence of insanity
during the continuance of adjudication, is found to rest on local statutes, of which no counterpart is
found in the Philippines. Even where the question of insanity is out in issue in the guardianship
proceedings, the most that can be said for the finding is that it raises a presumption of incapacity to
make a will but does not invaluable the testament if competency can be shown. The burden of providing
sanity in such case is cast upon the proponents.
It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is
the form of mental decay of the aged upon which will are most often contested. A Newton, Paschal, a
Cooley suffering under the variable weather of the mind, the flying vapors of incipient lunacy, would
have proved historic subjects for expert dispute. Had Shakespeares King Lear made a will, without any
question it would have invited litigation and doubt.
ISSUE:
Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet
the legal test regarding testamentary capacity and have the proponents of the will carried successfully
the burden of proof and shown him to be of sound mind on that date?
II. UNDUE INFLUENCE
FACTS:
The will was attacked on the further ground of undue influence exercised by the persons benefited in
the will in collaboration with others. The trial judge found this allegation to have been established and
made it one of the bases of his decision
Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently
became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F.
Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was Luz
Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution of the
will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as to who
could be admitted to see the patient.
The trial judge entertained the opinion that there existed a preconceived plan on the part of the
persons who surrounded Tomas Rodriguez to secure his signature to the testament. The trial judge may
be correct in this supposition. It is hard to believe, however, that men of the standing of Judge Mina,
Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean themselves and so
fully their characters and reputation as to participate in a scheme having for its purpose to delude and
to betray an old man in his age, rather named was acting according to the best of his ability to assist in
a legitimate act in a legitimate manner. Moreover, considering the attitude of Tomas Rodriguez toward
Margarita Lopez and her husband and his apparent enmity toward them, it seems fairly evident that
even if the will had been made in previous years when Rodriguez was more nearly in his prime, he
would have prepared somewhat a similar document.
One of the grounds for disallowing a will is that it was procured by undue and improper pressure and
influence on the art of the beneficiary or some other person for his benefit (Code of Civil Procedure,
sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills and as further
mentioned in the Civil Code (art. 1265), may be defined as that which compelled the testator to do that
which is against the will from fear the desire of peace or from other feeling which is unable to resist.
The theory of undue influence is totally rejected as not proved.

HELD:
Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which the
will was executed and to the testators mental condition. The other subscribing witness, also, a
physician on the contrary testified to a fact which, if substantiated, would require the court to disallow
the will. The attending physician and three other eminent members of the medical fraternity, who were
present at the execution of the will, expressed opinions entirely favorable to the capacity of the testator.
As against this we have the professional speculations of three other equally eminent members of the
medical profession when the will was executed. The advantage on those facts is all with those who offer
the will for probate.
The will was short. It could easily be understood by a person in physical distress. It was reasonable, that
is, it was reasonable if we take into account the evident prejustice of the testator against the husband of
Margarita Lopez.
Tomas Rodriguez comprehended the nature of the transaction in which he was engaged. He had two
conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was read to
him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and on the
left margin. At that time the testator recollected the property to be disposed of and the persons who
would naturally be supposed to have claims upon him. While for some months prior to the making of the
will he had not manage his property he seem to have retained a distinct recollection of what it consisted
and of his income. Occasionally his memory failed him with reference to the names of his relatives.
Ordinarily, he knew who they were, he seemed to entertain a prediliction towards Vicente F. Lopez as
would be natural since Lopez was nearest in which the instrument distributed the property naming the
objects of his bounty. His conversations with Judge Mina disclosed as insistence on giving all of his
property to the two persons whom he specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically
decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a
guardian and may have a been extremely eccentric, but he still possessed the spark of reason and of
life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce
that intention, which the law terms testamentary capacity. That in effect is the definite opinion which
we reach after an exhaustive and exhausting study of a tedious record, after weighing the evidence for
the oppositors, and after giving to the case the serious consideration which it deserves.
The judgment of the trial court is set aside and the will of Tomas Rodriguez is admitted to probate
without special pronouncement as to costs in this instance.

2. SUROZA vs HONRADO
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
A.M. No. 2026-CFI; December 19, 1981; AQUINO; Chants
FACTS:
1. Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army Fort McKinley, married Marcelina
Salvador in 1923
a. They were childless.
b. They reared a boy named Agapito who used the surname Suroza and who considered them as
his parents as shown in his 1945 marriage contract with Nenita de Vera
2. Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government.
a. That explains why on her death she had accumulated some cash in two banks.
3. Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
a. Agapito also became a soldier. He was disabled and his wifeNenita was appointed as his
guardian in 1953 when he was declared an incompetent
4. a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding.
a. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to Agapito
b. Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita's appointment as guardian of Agapito
5. Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California
6. spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old,
was entrusted to Arsenia dela Cruz (apparently a girl friend of Agapito) and who was later delivered to

Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her
granddaughter
a. Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by
Agapito. She married Oscar Medrano
7. Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old.
a. That will which is in English was thumbmarked by her. She was illiterate.
b. Her letters in English to the Veterans Administration were also thumbmarked by her
c. Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.
8. Marcelina died on November 15, 1974
a. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati,
Rizal. She owned a 150square meter lot and house in that place. She acquired the lot in 1966
9. On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina and the executrix in
her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband) filed a
petition for the probate of Marcelina's alleged will
10. Judge Honrado appointed Marina as administratrix
11. Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.
12. Judge Honrado issued another order instructing a deputy sheriff to eject the occupants of the
testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.
13. Nenita and the other occupants of the decedent's house filed a motion to set aside the order
ejecting them
14. In spite of the fact that Judge Honrado was already apprised that persons, he issued on April 23 an
order probating her supposed will wherein Marilyn was the instituted heiress
15. Nenita filed in the testate case an omnibus petition; attached was an affidavit of Zenaida A.
Penaojas the housemaid of Marcelina, who swore that the alleged will was falsified
16. Nenita filed an opposition to the probate of the will and a counter-petition for letters of
administration; attached was an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore
that Marcelina never executed a will
17. Marina admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito
and Arsenia de la Cruz and that Agapito was not Marcelina's son but merely an anak-anakan who was
not legally adopted
18. Judge Honrado dismissed Nenita's counter-petition
a. Judge Honrado denied the various incidents "raised" byNenita
19. Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul"
the probate proceedings
a. Judge Honrado dismissed it
20. Judge Honrado then closed the testamentary proceeding
21. About ten months later, in a verified complaint filed in this Court, Nenita charged Judge Honrado
with having probated the fraudulent will of Marcelina.
22. Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition
a. Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He
swore that the testatrix and the three attesting witnesses did not appear before him and that he
notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer
would bring to the notary the testatrix and the witnesses but the lawyer never complied with his
commitment.
23. The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil action of certiorari.
ISSUE: 1. Should disciplinary action be taken against respondent judge for having admitted to probate
a will, which on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably a forged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself?
HELD:
disciplinary action should be taken against respondent judge
respondent judge, on perusing the will and noting that it was written in English and was thumbmarked
by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood and
known" to the testatrix.
o But in its concluding paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language"
only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it
is void because of the mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the anomaly as to
the language of the will but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed
that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate testatrix,
and which is probably a forged will because she and the attesting witnesses did not appear before the
notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the Court
of Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a
boy named Agapito who used the surname Suroza and who considered them as his parents as shown in
his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government.
That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child
named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito.
She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old.
That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death,
she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the
executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's
alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following
day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the
Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina
S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy
sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's
son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp.
52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn
was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed
and attested, that it was procured by means of undue influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito
and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore
that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion
to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed
the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April
23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito
was not Marcelina's son but merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of
letters of administration because of the non-appearance of her counsel at the hearing. She moved for
the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the
probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p.
398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp.
398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in which the win was written. (In

the decree of probate Judge Honrado did not make any finding that the will was written in a language
known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named
Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix
did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was
not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita)
had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to
desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and,
should she persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion
dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of
the Court of Appeals for investigation, report and recommendation. He submitted a report dated
October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings
in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that
the testatrix and the three attesting witnesses did not appear before him and that he notarized the will
"just to accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the
testatrix and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to
do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper disposition of
the testate case which might have resulted in a miscarriage of justice because the decedent's legal
heirs and not the instituted heiress in the void win should have inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for serious misconduct
or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error
of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence

and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood and known"
to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be executed in a language or
dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator,
is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the anomaly as to the
language of the will but also that there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could
have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his
salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City.
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November
21, 1980, 101 SCRA 225).
SO ORDERED.
3. ARTICLES 805-806
Matias v. Salud
L-10751, 23 June 1958 |
FACTS:
The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was suffering
from herpes zoster that afflicted the right arm and shoulder of the testatrix, which made writing difficult
and a painful act. Thus, upon the insistence of the attorney, Gabina attempted to sign, but since it was
so painful she just managed to thumbmarked the foot of the document and the left margin at each
page. The parties opposing the probate of the will contended that the will was void due to the
irregularities in the execution thereof. One of the points raised by the oppositors was that the finger
mark can not be regarded as the decedents valid signature as it does not show distinct identifying
ridgelines. And since the finger mark was an invalid signature, there must appear in the attestation
clause that another person wrote the testators name at his request.
ISSUE: W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to require
dexterity that
can be expected of very few persons; testators should not be required to possess the skill of trained
officers. And as to the validity of the thumbprints as signature, the SC held that it has been held in a
long line of cases that a thumbprint is
always a valid and sufficient signature for the purpose of complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A
thumbprint is considered as a valid
and sufficient signature
IN RE PROBATE OF THE WILL OF GABINA RAQUEL, deceased,
AUREA MATIAS,
Petitioner-Appellant,

- versus
BASILIA SALUD,
Oppositor-Appellee.
G. R. NO. L-10751
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:

ATESTIGUAMIENTO
Nosotros, Modesta Gonzales, Felipe Zabala y Lourdes
Samonte, por la presente certificamos que este Testamento
compueto de tres (3) paginas utiles fue otorgado como la
ultima voluntad y testament de Gavina Raquel, quien ha
suscrito y firmado en su margen izquierdo y al pie del
mismo, en presencia de todos y cada uno de nosotros, y
tambien nosotros hemos firmado y atestiguado este
testamento compuesto de tres (3) paginas cada uno en
presencia de otros y en la de la testadora, en su margen
izquierdo y al pie del atestiguamiento.
(SGD) MODESTA GONZALES (SGD) FELIPE SAMALA
(SGD) LOURDES SAMONTE
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 nonproduction 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 effect 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 time
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 thatthe 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 admitted to
probate. Let the records be returned to the court of origin for further proceedings in accordance with
this opinion. Costs against appellees.
4. ARTICLES 805-806
Garcia v. Lacuesta
90:489 | Castillo
FACTS:
This case involves the will of Antero Mercado, which among other defects was signed by the testator
through a cross mark (anX). The will was signed by Atty. Javier who wrote the name of Mercado as
testator and the latter allegedly wrote a cross mark after his name. The CFI allowed the will but the CA

disallowed it because its attestation clause was defective for failing to certify 1) that the will was signed
by Atty. Javier at the express direction of the testator, 2) that the testator wrote a cross at the end of his
name after Atty. Javier signed for him, and 3) that the 3 witnesses signed the will in the presence of the
testator and of each other.
ISSUE:
Whether the will should be allowed despite the defect of the attestation clause since the testator had
placed a cross mark
himself as his signature.
HELD:
The attestation clause is fatally defective for failing to state that Mercado directed Javier to write the
testators name under his express direction. Petitioners argument that such recital is unnecessary
because the testator signed the will himself using a cross mark which should be considered the same as
a thumb-mark (which has been held sufficient in past cases) is not acceptable. A cross mark is not the
same as a thumb mark, because the cross mark does not have the same trustworthiness of a thumb
mark.
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
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 to 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 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 statement, this the third day of January, one thousand nine hundred
forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA 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 reugo del testator" 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 judgement 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 former's
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 testator's 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. Petitioner's 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 vs. Gonzales and Ona, 53 Phil.,
104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296
and Lopez vs. 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 the cross to a thumbmark, and the reason is obvious. The cross cannot and does not
have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine 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 against the petitioner. So ordered.
5. Barut v. Cabacungan
21:461 | Casuela
Doctrine: .. it is entirely clear that, with respect to the validity of the will, it is unimportant whether
the person who writes the name of the testatrix signs his own or not. The important thing is that it
clearly appears that the name of the testatrix was signed at her express direction in the presence of
three witnesses and that they attested and subscribed it in her presence and in the presence of each
other.
Facts:
1. This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased.
Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been
witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part
of decedent's property.
2. After disposing of her property the testatrix revoked all former wills by her made. She also stated in
said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and
Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the deceased
on various grounds, among them that a later will had been executed by the deceased. The will
referred to as being a later will is the one involved in another case No. 6284.
3. In the case before us the probate court found that the will was not entitled to probate upon the sole
ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will
for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that
of the person whose handwriting it was alleged to be.
Issue:
Does the difference in the handwriting of the one who alleged to sign in the name of testatrix looked
more the handwriting of one of the other witness render the will invalid despite the will being attested
and subscribed by three witnesses?
HELD:
No.
1. The Supreme Court does not believe that the mere dissimilarity in writing thus mentioned by the
court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request and in her presence and in the
presence of all the witnesses to the will.
It is immaterial who writes the name of the testatrix provided it is written at her request and in
her presence and in the presence of all the witnesses to the execution of the will.
2. The high court does not believe that this contention of the probate courtn can be sustained. Section
618 of the Code of Civil Procedure 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 effect the same, unless it be in writing and signed by the testator, or by
the testator's name written by some other person in his presence, and by his expenses direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator
and of each. . . .
From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not. i. The
important thing is that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they attested and subscribed it in
her presence and in the presence of each other.
It may be wise as a practical matter that the one who signs the testator's name signs also his
own; but that it is not essential to the validity of the will.
Nor is such requirement found in any other branch of the law. The name of a person who is
unable to write may be signed by another by express direction to any instrument known to the
law.
The main thing to be established in the execution of the will is the signature of the testator. If
that signature is proved, whether it be written by himself or by another at his request, it is none
the less valid, and the fact of such signature can be proved as perfectly and as completely when
the person signing for the principal omits to sign his own name as it can when he actually signs.

3. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in
the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the
statute expressly declares is valid.
4. Aside from the presentation of an alleged subsequent will the contestants in this case have set forth
no reason whatever why the will involved in the present litigation should not be probated. The due and
legal execution of the will by the testatrix is clearly established by the proofs in this case.
As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have
already spoken. We there held that said later will not the will of the deceased.
Decision: The judgment of the probate court must be and is hereby reversed
and that court is directed to enter an order in the usual form probating the will
involved in this litigation.
FACTS:
Barut applied for the probate of the will of deceased, MariaSalomon. The testatrix stated in the will that
being unable to read or write, the will was read to her by Ciriaco Concepcion and Timotea Inoselda and
that she had instructed Severo Agayan to sign her name to it as testatrix. The probate was contested by
a number of the relatives of the deceased on various grounds. The probate court found that the will was
not entitled to probate because the handwriting of the person who it is alleged signed the name of the
testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses
to the will than to the person whose handwriting it was alleged to be (i.e. The probate court denied
probate because the signature seemed to not have been by Severo Agayan but by another witness).
ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of the will?
HELD:
No. The SC found that the mere dissimilarity in writing is sufficient to overcome the uncontradicted
testimony of all the
witnesses that the signature of the testatrix was written by Severo Agayan. It is also immaterial who
writes the name of the testatrix provided it is written at her request and in her presence and in the
presence of all the witnesses to the execution of the will. Based on Section 618 of the Code of Civil
Procedure, it is clear that with respect to the validity of the will, it is unimportant whether the person
who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears
that the name of the testatrix was signed at her express direction in the presence of 3 witnesses and
that they attested and subscribed it in her presence and in the presence of each other. It may be wise
that the one who signs the testators name signs also his own; but that is not essential to the validity of
the will. The court also held that the 3 cases cited by the lower court was not applicable. In those cases,
the person who signed the will for the testator wrote his own name instead of the testators, so that the
testators name nowhere appeared in the will, and were thus wills not duly executed.
G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No.
6284,1 just decided by this court, wherein there was an application for the probate of an alleged last will
and testament of the same person the probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament
of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the
7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing
date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged
to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the
larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish
appears at page 11. After disposing of her property the testatrix revoked all former wills by her made.
She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco
Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as
testatrix.
The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred to

as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate
of this later will were pending at the time. The evidence of the proponents and of the opponents was
taken by the court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to probate upon the
sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the
will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than
that of the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity
in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the
witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and
in her presence and in the presence of all the witnesses to the will. It is immaterial who writes the name
of the testatrix provided it is written at her request and in her presence and in the presence of all the
witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating to the execution
of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his
own name; and that, in view of the fact that, in the case at bar, the name signed below that of the
testatrix as the person who signed her name, being, from its appearance, not the same handwriting as
that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the
person who signed the name of the testatrix failed to sign his own. We do not believe that this
contention can be sustained. Section 618 of the Code of Civil Procedure 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 effect the same, unless it be in writing and signed by the testator, or by the testator's
name written by some other person in his presence, and by his expenses direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the court holds that the person who
signs the name of the testator for him must also sign his own name The remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or caused it to be signed by some
other person, at his express direction, in the presence of three witnesses, and that they attested and
subscribed it in his presence and in the presence of each other. But the absence of such form of
attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as
in this section provided.
From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix was signed at her express direction in the presence
of three witnesses and that they attested and subscribed it in her presence and in the presence of each
other. That is all the statute requires. It may be wise as a practical matter that the one who signs the
testator's name signs also his own; but that it is not essential to the validity of the will. Whether one
parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the
validity of her will is concerned. The plain wording of the statute shows that the requirement laid down
by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying
the provisions of the statute relating to the execution of wills do not in any sense require such a
provision. From the standpoint of language it is an impossibility to draw from the words of the law the
inference that the persons who signs the name of the testator must sign his own name also. The law
requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is unable to
write may be signed by another by express direction to any instrument known to the law. There is no
necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the
name of the principal in the document to sign his own name also. As a matter of policy it may be wise
that he do so inasmuch as it would give such intimation as would enable a person proving the document
to demonstrate more readily the execution by the principal. But as a matter of essential validity of the
document, it is unnecessary. The main thing to be established in the execution of the will is the
signature of the testator. If that signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved as perfectly and as
completely when the person signing for the principal omits to sign his own name as it can when he
actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the
principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a
will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which we have
herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700),
and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the
case last above stated gives an indication of what all of cases are and the question involved in each one
of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will.
Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the person
who signed the will for the testator wrote his own name to the will instead of writing that of the testator,
so that the testator's name nowhere appeared attached to the will as the one who executed it. The case
of Ex parte Arcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in
the following manner: "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.
The only question for decision in that case, as we have before stated, was presented by the fact that the
person who was authorized to sign the name of the testator to the will actually failed to sign such name
but instead signed his own thereto. The decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no
reason whatever why the will involved in the present litigation should not be probated. The due and
legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon the
facts, therefore, the will must be probated. As to the defense of a subsequent will, that is resolved in
case No. 6284 of which we have already spoken. We there held that said later will not the will of the
deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to enter an
order in the usual form probating the will involved in this litigation and to proceed with such probate in
accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly
require that, when the testator or testatrix is unable or does not know how to sign, the person who, in
the presence and under the express direction of either of them, writes in the name of the said testator
or testatrix must also sign his own name thereto, it being sufficient for the validity of the will that the
said person so requested to sign the testator or testatrix write the name of either in his own
handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of wills executed
in accordance with the provisions of the Code of Civil Procedure, never has the specific point just above
mentioned been brought into question. Now for the first time is affirmed in the majority opinion, written
by the learned and distinguished Hon. Justice Moreland, that, not being required by the said code, the
signature of the name of the person who, at the request of the testator or testatrix, writes the name of
either of the latter to the will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this court in which, as will be
seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its
observance in cases where the testator or testatrix is unable or does not know how to sign his or her
name, expressly prescribed the practical method of complying with the provisions of the law on the
subject. Among these decisions several were written by various justices of this court, some of whom are
no longer on this bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a
will, reads as follows:
Wills, authentication of . Where a will is not signed by a testator but by some other person in his
presence and by his direction, such other person should affix the name of the testator thereto, and it is
not sufficient that he sign his own name for and instead of the name of the testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will,
states:
1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil Procedure; consequently
where a testator is unable to sign his name, the person signing at his request must write at the bottom
of the will the full name of the testator in the latter's presence, and by his express direction, and then
sign his own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements
appear:
Wills; inability to sign; signature by another. The testatrix was not able to sign her name to the will,
and she requested another person to sign it for her. Held, That the will was not duly executed.

(Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August
24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)
The following syllabus precedes decision No. 3907:4
Execution of wills. Where it appears in a will that the testator has stated that by reason of his inability
to sign his name he requested one of the three witnesses present to do so, and that as a matter of fact,
the said witness wrote the name and surname of the testator who, stating that the instrument executed
by him contained his last will, put the sign of the cross between his said name and surname, all of which
details are set forth in a note which the witnesses forthwith subscribed in the presence of the testator
and of each other, said will may be probated.
When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity
of a will have been complied with, the fact that the witness who was requested to sign the name of the
testator, omitted to state the words 'by request of .......... the testator,' when writing with his own hand
the name and surname of the said testator, and the fact that said witness subscribed his name together
with the other witnesses and not below the name of the testator, does not constitute a defect nor
invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria
Siason:5
The recital of the name of the testator as written below the will at his request serves as a signature by a
third person.
Moreover among the grounds given as a basis for this same decision, the following appears:
In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte
Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas
case the court pointed out the correct formula for a signature which ought to be followed, but did not
mean to exclude any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:
The testatrix was unable to sign her will with her own hand and requested another person to sign for
her in her presence. This the latter did, first writing the name of the testatrix and signing his own name
below: Held, That the signature of the testatrix so affixed is sufficient and a will thus executed is
admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:
The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity.
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we
neither affirm nor deny, because a specific determination either way is unnecessary, in our opinion the
signature for the testatrix placed outside of the body of the will contains the name of the testatrix as if
she signed the will, and also the signature of the witness who, at her request, wrote the name of the
testatrix and signed for her, affirming the truth of this fact, attested by the other witnesses then
present. And this fully complies with the provisions of section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established that the person who, at the
request of the testator or testatrix, signed the latter's or the former's name and surname to the will
must affix his own signature; but it no less true that, in prescribing the method in which the provisions
of the said section 618 to be complied with, it was stated that, in order that a will so executed might be
admitted to probate, it was an indispensable requisite that the person requested to sign in place of the
testator or testatrix, should write the latter's or the former's name and surname at the foot of the will in
the presence and under the direction of either, as the case might be, and should afterwards sign the
instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or testatrix at the foot
of the will should likewise affix his own signature thereto, name and surname, though it be considered
to be neither a rule nor a requisite necessary to follow for the admission of the will to probate, yet it is
unquestionable that, in inserting this last above-mentioned detail in the aforesaid decisions, it was
deemed to be a complement and integral part of the required conditions for the fulfillment of the
provisions of the law.
It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating

in the decisions hereinabove quoted that the name and surname of the said person should be affixed by
him, no act prohibited by law was recommended or suggested, nor may such a detail be understood to
be contrary or opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to require that the
person requested to write the name of the testator or testatrix in the will also sign the instrument with
his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of
this country and for sake of an upright administration of justice, it should be maintained that such a
signature must appear in the will, since no harm could accrue to anyone thereby and, on the contrary, it
would serve as a guarantee of the certainty of the act performed and also might eliminate some
possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695
of the Civil Code and, while he conceded that, in the examination and qualification of a will for the
purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of Civil
Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled by a
traditional conception of the laws which he has known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common sense requisite that the signature, with his
own name and surname, of the person requested to write in the will the name and surname of the
testator or testatrix should form a part of the provisions of the aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before
referred to a requisite deemed to be convenient and prudent in the majority opinion formed a part
of the provisions of the law, since the latter contains nothing that prohibits it. The aforementioned
different decisions were drawn up in the form in which they appear, and signed without dissent by all
the justices of the court on various dates. None of them hesitated to sign the decisions, notwithstanding
that it was expressly held therein that the person above mentioned should, besides writing in the will
the name and surname of the testator or testatrix, also sign the said instrument with his own name and
surname.
Without being understood to criticize the provision contained in the said section 618 of the Code of Civil
Procedure it will not be superfluous to mention that the system adopted in this section is the same as
was in vogue under the former laws that governed in these Islands, with respect to witnesses who were
not able or did not know how to sign their testimony given in criminal or civil cases, in which event any
person at all might write the name and surname of the witness who was unable or did not know how to
sign, at the foot of his deposition, where a cross was then drawn, and, this done, it was considered that
the instrument had been signed by the witness, though it is true that all these formalities were
performed before the judge and the clerk or secretary of the court, which thereupon certified that such
procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who
writes the name and surname of the testator or testatrix does so by the order and express direction of
the one or of the other, and this fact must be recorded in the will; but in the matter of the signature of a
deposition, the witness, who could not or did not know how to sign, did not need to designate anyone to
write the deponent's name and surname, and in practice the witness merely made a cross beside his
name and surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous statutes, among them
those of the Civil Code, the person or witness requested by the testator or testatrix who was not able or
did not know how to sign, authenticated the will by signing it with his own name and surname, preceded
by the words "at the request of the testator or testatrix." Paragraph 2 of article 695 of the Civil Code
contains the following provisions bearing on the subject:
Should the testator declare that he does not know how, or is not able to sign, one of the attesting
witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall
be done if any one of the witnesses can not sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the
old laws with respect to the signing of a will by a testator or testatrix who did not know how or who
could not sign, consisted in that the person appointed and requested by the testator or testatrix to sign
in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will and after
the words "at the request of the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by these legal
provisions, which it may said, are traditional to them in the ideas they have formed of the existing laws
in the matter of procedure in compliance therewith as regards the execution and signing of a will,
should have believed that, after the name and surname of the testator or testatrix had been written at
the foot of the will, the person who signed the instrument in the manner mentioned should likewise sign
the same with his own name and surname.
If in various decisions it has been indicated that the person who, under the express direction of the
testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will with

his own name and surname, and since this suggestion is not opposed or contrary to the law, the
undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it
should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such a
requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition of
this country, does not prejudice the testator nor those interested in an inheritance, and, on the contrary,
constitutes another guarantee of the truth and authenticity of the letters with which the name and
surname of the testator of testatrix are written, in accordance with his or her desire as expressed in the
will.
Even though the requisites referred to were not recognized in jurisprudence and were unsupported by
any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs observed
in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit of the
inhabitants of the Islands and for the sake of a good administration of justice, because it is not a
question of a dangerous innovation or of one prejudicial to the public good, but a matter of the
observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts and
which in the present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better premises, but in the opinion
of the undersigned, are conducive to the realization of the purposes of justice, have impelled him to
believe that the proposition should be enforced that the witness requested or invited by the testator or
testatrix to write his or her name to the will, should also subscribed the instrument by signing thereto
his own name and surname; and therefore, with the proper finding in this sense, and reversal of the
judgment appealed from, that the court below should be ordered to proceed with the probate of the will
of the decedent, Maria Salomon, in accordance with the law.

6. In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
G.R. No. L-15153 August 31, 1960 ;
FACTS:
1) 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 double space.
2) 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 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.
a. On the first page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses.
b. On the second page, which is the last page of 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.
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 law prescribing the
manner in which a will shall be executed?
HELD: the said will of the deceased Anacleta Abellana may not be admitted to probate.
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 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 witness in the presence
of the testator and of one another.
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.
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.

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
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 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 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. (Emphasis 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 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 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 witness in the presence of the testator and of
one another. (Emphasis supplied.)
The clause "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," 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 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 each other. . . .
(Emphasis 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 testator's 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., Phil., 700:
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 testator's 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 testator's name be written by the person signing in his stead in the place where he
could have signed if he knew how or was able to do so, and this in the testator's 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:

John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." 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 forms given above. He did not do so,
however, and this is 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.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut
vs. 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 areas follows: (Ex Parte Juan
Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. 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.
Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon, JJ., concur.
7. BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendantappellant
G.R. No. L-5971; February 27, 1911; CARSON
FACTS:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in the
small room where it was executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a
large room connecting with the smaller room by a doorway, across which was hung a curtain which
made it impossible for one in the outside room to see the testator and the other subscribing witnesses
in the act of attaching their signatures to the instrument.
FACTS:
1. Facts are missing in this case.
2. Witness was outside, some eight or ten feet away, in a large room connecting with the smaller room
by a doorway, across which was hung a curtain which made it impossible for one in the outside room to
see the testator and the other subscribing witnesses in the act of attaching their signatures to the
instrument.
ISSUE:
1. Whether one of the subscribing witnesses was present in the small room where it was executed at the
time when the testator and the other subscribing witnesses attached their signatures?
HELD:
1. Subscribing witness was in the small room with the testator and the other subscribing witnesses at
the time when they attached their signatures to the instrument
subscribing witness has been proven to have been in theouter room at the time when the
testator and the other subscribing witnesses attached their signatures to the instrument in the
inner room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room.

line of vision from this witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."
position of the parties with relation to each other at the moment of the subscription of each
signature must be such that they may see each other sign if they choose to do so
does not mean that the testator and the subscribing witnesses may be held to have
executed the instrument in the presence of each other if I appears that they would not
have been able to see each other sign at that moment, without changing their relative
positions or existing conditions.
at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took

place by merely casting his eyes in the proper direction and without any physical obstruction to
prevent his doing so."

Doctrine: whether the testator and the subscribing witnesses to an alleged will sign the instrument in
the
presence of each other does not depend upon proof of thefact that their eyes were actually cast upon
the paper at the moment of its subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were such that by merely casting the eyes in
the proper direction they could have seen each other sign.
o extend the doctrine further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would
o defeat the purpose for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.

HELD:
Citing Jaboneta v. Gustilo, the court held that The true test of presence of the testator and the
witnesses in the execution of a will is not whether they actually saw each other sign, but whether they
might have been seen each other sign, had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment
of the subscription of each signature, must be such that they may see each other sign if they choose to
do so.
The question is whether the testator and the subscribing witnesses to an alleged will signed the
instrument in the presence of each other does not depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its subscription by each of them, but that at that
moment existing conditions and their position with relation to each other were such that by merely
casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one of the
requisites in the
execution of a will.
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in the
small room where it was executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a
large room connecting with the smaller room by a doorway, across which was hung a curtain which
made it impossible for one in the outside room to see the testator and the other subscribing witnesses
in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room
with the testator and the other subscribing witnesses at the time when they attached their signatures to
the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of
the decree admitting the document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down in
the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses
was in the outer room when the testator and the other describing witnesses signed the instrument in
the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the
will. But we are unanimously of opinion that had this subscribing witness been proven to have been in
the outer room at the time when the testator and the other subscribing witnesses attached their
signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of
those signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other subscribing
witnesses would necessarily have been impeded by the curtain separating the inner from the outer one
"at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have been seen each other sign, had they chosen
to do so, considering their mental and physical condition and position with relation to each other at the
moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment
of the subscription of each signature, must be such that they may see each other sign if they choose to
do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to
have executed the instrument in the presence of each other if it appears that they would not have been
able to see each other sign at that moment, without changing their relative positions or existing
conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when
the witness Javellana signed the document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the
proper direction and without any physical obstruction to prevent his doing so." And the decision merely
laid down the doctrine that the question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not depend upon proof of the fact
that their eyes were actually cast upon the paper at the moment of its subscription by each of them,
but that at that moment existing conditions and their position with relation to each other were such that
by merely casting the eyes in the proper direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like,
and would defeat the purpose for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the
last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.
8. IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte,
(Branch III, Maasin),respondent.
G.R. No. L-36033 November 5, 1982
Facts:
1. In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez.
Written in the Cebuano-Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses.
The second page which contains the attestation clause and the acknowledgment is signed at the
end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by
the testatrix.
2. TC: denying the probate of the will of Dorotea Perez for want of a formality in its execution.
The petitioner was also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex parte
He also asked that the ten-day period required by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
3. The new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed
ex parte.
In the same order of denial, the motion for the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the order requiring him to submit the
names of' the intestate heirs and their addresses.
Issue: WON it is required that the testatrix and all the three instrumental and attesting witnesses sign
at the end of the will and in the presence of the testatrix and of one another.
Held: No. The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due execution of the
will as embodied in the attestation clause.

1. Under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator
himself or by the testator's name written by another 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.

It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those
things are, done which the statute requires for the execution of a will and that the signature of
the testator exists as a fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in
this case was subscribed in a manner which fully satisfies the purpose of Identification.

2. The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the
usual forms should be ignored, especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).

3. The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix.
There was no question of fraud or substitution behind the questioned order.
4. 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 wig 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".
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch
III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the
motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two
pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses.
The second page which contains the attestation clause and the acknowledgment is signed at the end of
the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication, the
trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the
petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to
the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of the
estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion,
ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of
the disallowance of the will. He also asked that the ten-day period required by the court to submit the
names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However,
the motion together with the previous manifestation and/or motion could not be acted upon by the
Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or
incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of
presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order requiring
him to submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and
all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the
testatrix and of one another?
Article 805 of the Civil Code provides:
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 lacier witnesses
and signed the will and 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 the
witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to
be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the signature
of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the
left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place so
heavy an import on the space or particular location where the signatures are to be found as long as this
space or particular location wherein the signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the
testator himself or by the testator's name written by another 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.
It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing
the testator's execution of the will in order to see and take note mentally that those things are, done
which the statute requires for the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for
the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v.
Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not
only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90
Phil. 444, 449).
The law is to be liberally construed, "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 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. This objective is in accord with the modern
tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p.
103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in
the place of signatures of the witnesses, he would have found the testimony sufficient to establish the
validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang
to be the same will executed by the testatrix. There was no question of fraud or substitution behind the
questioned order.
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 wig 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".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:
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 win 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 vs.
Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. 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.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two
other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on record attests to the fun observance of the
statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the
attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied
the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside. The respondent court is ordered to allow the

probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.
9. IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
G.R. No. L-18979 June 30, 1964
FACTS:
1. Testator: Josefa Villacorta, died in 1958
2. Petition for allowance and admission to probate of the alleged will, and for the appointment of
petitioner Celso Icasiano as executor
According to him, Josefa executed a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by
three instrumental witnesses: Attorney Torres and Trinidad, and Mr. Diy (didnot testify, in the
States)
Acknowledged before the notary
Actually prepared by Attorney Samson, who was also present during the execution and signing,
together with former Governor Rustia of Bulacan, Judge Icasiano and a little girl
The will consists of 5 pages and while signed at the end and in every page, it does not contain
the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three
But the duplicate copy attached to the amended and supplemental petition is signed by the
testatrix and her three attesting witnesses in each and every page.
Pages of the original and duplicate of said will were duly numbered
Attestation clause contains all the facts required by law to be recited therein and is signed by the
aforesaid attesting witnesses
Will is written in the language known to and spoken by the testatrix, and that the attestation
clause is in a language also known to and spoken by the witnesses
The will was executed on one single occasion in duplicate copies, and both the original and the
duplicate copies were duly acknowledged before Notary Public
3. Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.
4. Natividad Icasiano, a daughter of the testatrix, filed her opposition; and, she petitioned to have
herself appointed as a special administrator, to which proponent objected.
5. Hence, the court issued an order appointing the Philippine Trust Company as special administrator.
6. Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.
ISSUE:
1. Were the signatures of the testatrix appearing in the duplicate original written by the same? YES
2. Is there adequate evidence of fraud or undue influence? NO
3. Should the Court deny probate, for the reason that one witness inadvertently failed to sign? NO
4. Since the original will is existent, is the duplicate not entitled to probate? NO
HELD:
First Issue
1. We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies of the will spontaneously
In the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents
That the will and its duplicate were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses
And read to and by the testatrix and Atty. Fermin Samson, together before they were actually
signed
That the attestation clause is also in a language known to and spoken by the testatrix and the
witnesses
The expert has, in fact, used as standards only three other signatures of the testatrix besides
those affixed to the original of the testament
2. Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power.
Second Issue
1. The fact that some heirs are more favored than others is proof of neither
2. Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate.
The testamentary dispositions that the heirs should not inquire into other property and that they
should respect the distribution made in the will, under penalty of forfeiture of their shares in the
free part do not suffice to prove fraud or undue influence.

They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into the hands of nonheirs and speculators.
Whether these clauses are valid or not is a matter to be litigated on another occasion.

Third Issue
1. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix and all three witnesses.
2. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control, where the purpose of the law
to guarantee the identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests to the full observance of
the statutory requisites
3. That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of
signatures in every page.
4. The text of the attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
Fourth Issue
1. Since they opposed probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma
2. If the original is defective and invalid, then in law there is no other will but the duly signed carbon
duplicate , and the same is probatable.
3. If the original is valid and can be probated, then the objection to the signed duplicate need not be
considered, being superfluous and irrelevant.
4. At any rate, said duplicate serves to prove that the omission of one signature in the third page of the
original testament was inadvertent and not intentional.
5. Appellants were duly notified of the proposed amendment, and it is nowhere proved or claimed that
the amendment deprived the appellants of any substantial right We see no error in admitting the
amended petition.
G.R. No. L-18979
June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator. 1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his
own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June
1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959.
On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959,
the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after several hearings the
court issued the order admitting the will and its duplicate to probate. From this order, the oppositors

appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila
on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street,
Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix
and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little
girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to
the due execution and authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon cross examination that he prepared one original
and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he
brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and
marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every
page.
The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known
to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by
the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the
original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila
on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may
have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was
signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was deceived
into adopting as her last will and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from
properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and
not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in
Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by
the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate
original were not written by the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents,
but principally because of the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's range of normal
scriptural variation. The expert has, in fact, used as standards only three other signatures of the
testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few
standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that the are radical differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability of her signatures, and the effect of

writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the
expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the
heirs should not inquire into other property and that they should respect the distribution made in the
will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue
influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another
occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off.
Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one
page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the
fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests
to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49
Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or
bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown
by his own testimony as well as by the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and the acknowledgment before the Notary
Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator
and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41
Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure
to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429).
These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order
to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate
(Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one
signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if
the original is defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate,
said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the
original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of the petition
for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ.,
concur.
Barrera and Dizon, JJ., took no part.