G.R. No. L-42258, Payad v.

Tolentino
SUPREME COURT
Manila
EN BANC
DECISION
January 15, 1936
G.R. No. L-42258
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,vs.AQUILINA
TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant. Leodegario Azarraga for
oppositor-appellant.
Goddard, J.:
LEONCIA TOLENTINO. VICTORIO PAYAD vs. AQUILINA TOLENTINO
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. L-42258 January 15, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant, vs.AQUILINA
TOLENTINO, oppositor-appellant.
GODDARD, J.:
Both parties in this case appeal from an order of the trial court denying the probate of the alleged will of
Leoncia Tolentino, deceased. That court found that the will in question was executed by the deceased on the
date appearing thereon, September 7, 1933, one day before the death of the testatrix, contrary to the
contention of the oppositor that it was executed after her death. The court, however, denied probate on the
ground that the attestation clause was not in conformity with the requirements of law in that it is not stated
therein that the testatrix caused Attorney Almario to write her name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in not finding that the
will in question was executed after the death of Leoncia Tolentino, or that she was mentally and physically
incapable of executing said will one day before her death. After a careful examination of the evidence on
these points we find no reason for setting aside the conclusion of the trial court as set forth above. The
assignments of the oppositor-appellant are therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial court denied probate of the will on
the sole ground that the attestation clause does not state that the testratrix requested Attorney Almario to
write her name.
The last paragraph of the questioned will reads in part as follows:
En prueba de todo lo cual, firmo el presente testamento con mi marcha digital, poque no puedo estampar mi
firma a causa de mi debilidad, rogando al abogado M. Almario que poga mi nombre en el sitio donde he de
estampar mi marcha digital . . ..
The evidence of record established the fact that Leoncia Tolentino, assisted by Attorney Almario, placed her
thumb mark on each and every age of time questioned will and the said attorney merely wrote her name to
indicate the place where she placed said thumb mark. In other words Attorney Almario did not sign for the
testatrix. She signed for placing her thumb mark on each and every page thereof "A statute requiring a will to
be 'signed' is satisfied if the signature is made by the testator's mark." (Quoted by this court from 28 R.C.L.,
p, 117; De Gala vs. Gonzales and Ona, 53 Phil. 104, 108.) It is clear, therefore, that it was not necessary
that the attestation clause in question should state that the testatrix requested Attorney Almario to sign her
name inasmuch as the testratrix signed the will in question in accordance with law.
The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino, deceased, is
hereby admitted to probate with the costs of this appeal against the oppositor-appellant.

Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.

2.) G.R. No. L-10907

June 29, 1957

AUREA
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.
J.
Gonzales
Venancio H. Aquino for respondents.

Orense

MATIAS, petitioner,

for

petitioner.

CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as
Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said
court, entitled "Testate Estate of the Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a
document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8,
1952, at the age of 92 years. The heir to the entire estate of the deceased except the properties
bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud,
Santos Matias and Rafael Matias is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the probate
of her alleged will, and, after appropriate proceedings, the court, presided over by respondent Judge, issued
an order, dated February 8, 1956, sustaining said opposition and denying the petition for probate.
Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now
pending decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special
administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion
was set for hearing on February 23, 1956, on which date the court postponed the hearing to February 27,
1956. Although notified of this order, Rodriguez did not appear on the date last mentioned. Instead, he filed
an urgent motion praying for additional time within which to answer the charges preferred against him by
Basilia Salud and for another postponement of said hearing. This motion was not granted, and Basilia Salud
introduced evidence in support of said charges, whereupon respondent Judge by an order, dated February
27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and, accordingly, relieved him
as special administrator of the estate of the deceased and appointed Basilia Salud as special administratrix
thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide,
interpreter and adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by
Mr. Ramon Plata . . . who is hereby appointed as co-administrator."
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be
appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is
over eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office,
and that said movant is the universal heiress of the deceased and the person appointed by the latter as
executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained
"the appointment of the three above named persons" Basilia Salud, Ramon Plata and Victorina Salud
"for the management of the estate of the late Gabina Raquel pending final decision on the probate of the
alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as
special administratrix by reason of physical disability, due to old age, and recommended the appointment, in
her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias
sought a reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her
conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on
account of her antagonism to said Aurea Matias she (Victorina Salud) having been the principal and most
interested witness for the opposition to the probate of the alleged will of the deceased and proposed that
the administration of her estate be entrusted to the Philippine National Bank, the Monte de Piedad, the Bank
of the Philippine Islands, or any other similar institution authorized by law therefor, should the court be
reluctant to appoint the movant as special administratrix of said estate. This motion for reconsideration was
denied on March 26, 1956.
Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority
to collect the rents due, or which may be due, to the estate of the deceased and to collect all the produce of
her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed another motion
praying for permission to sell the palay of the deceased then deposited in different rice mills in the province
of Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner
instituted the present action against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose
of annulling the above mentioned orders of respondent Judge, upon the ground that the same had been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the choice of special
administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and,
the executrix appointed in the alleged will of the deceased, that until its final disallowance which has not,
as yet, taken place she has a special interest in said estate, which must be protected by giving
representation thereto in the management of said estate; that, apart from denying her any such
representation, the management was given to persons partial to her main opponent, namely, Basilia Salud,
inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her (Basilia
Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness for said
office, she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on
March 17, 1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules of Court
do not permit the appointment of more than one special administrator; that Horacio Rodriguez was removed
without giving petitioner a chance to be heard in connection therewith; and that Ramon Plata and Victorina

Salud were authorized to collect the rents due to the deceased and the produce of her lands, as well to sell
her palay, without previous notice to the petitioner herein.
Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction
and without any abuse of discretion; that petitioner can not validly claim any special interest in the estate of
the deceased, because the probate of the alleged will and testament of the latter upon which petitioner
relies has been denied; that Horacio Rodriguez was duly notified of the proceedings for his removal; and
that Victorina Salud and Ramon Plata have not done anything that would warrant their removal.
Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the
following reasons:
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17,
1956, the record shows that petitioner herein received copy of said motion of February 24, 1956, or the date
after that set for the hearing thereof. Again, notice of the order of respondent Judge, dated February 23,
1956, postponing said hearing to February 27, 1956, was not served on petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the
appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that
her main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be considered for
the management of said. As a consequence, said petitioner had no opportunity to object to the appointment
of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order
of February 27, 1956, to this effect, denied due process to said petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise
respondent Judge would not have directed that she "be assisted and advised by her niece Victorina Salud,"
and that the latter "shall always act as aide, interpreter and adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special administrators Basilia Salud, Victorina
Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained
"the appointment of the three (3) above-named persons for the management of the estate of the late Gabina
Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias
and Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased.
The former proposed Horacio Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an
order dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the
matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter,
who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a
practicing lawyer and a former public prosecutor, and later, mayor of the City of Cavite, is a resident thereof.
In other words, the order of resident thereof. In other words, the order of respondent Judge of February 27,
1956, removing Rodriguez and appointing Victorina Salud to the management of the estate, amounted to a
reversal of the aforementioned order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent
Judge, the order to this effect is not, as yet, final and executory. It is pending review on appeal taken by
Aurea Matias. The probate of said alleged will being still within realm of legal possibility, Aurea Matias has
as the universal heir and executrix designated in said instrument a special interest to protect during the
pendency of said appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held that a
widow, designated as executrix in the alleged will and testament of her deceased husband, the probate of
which had denied in an order pending appeal, "has . . . the same beneficial interest after the decision of the
court disapproving the will, which is now pending appeal, because the decision is not yet final and may be
reversed by the appellate court."
7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one,
represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as
the lower court had deemed it best to appoint more than one special administrator, justice and equity
demands that both factions be represented in the management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be
appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the
facts obtaining in said case. The lower court appointed therein one special administrator for some properties
forming part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2)
separate and independent special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two special co-administrators. In
short, the Roxas case is not squarely in point. Moreover, there are authorities in support of the power of
courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A.
514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the
matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to all
parties concerned, for action in conformity with the views expressed herein, with costs against respondents
Victorina Salud and Ramon Plata. It is so ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and Felix,
JJ.,concur.
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.
PARAS, C.J.:

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.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant, vs.FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No.
6284,1just 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.
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs.NARCISA RIMANDO, defendant-appellant.

CARSON, J.:
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.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
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, oppositorsappellants.
REYES, J.B.L., J.:
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.
G.R. No. L-5826, Testate Estate of Cagro. Cagro v. Cagro et al., 92 Phil. 1032

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.PELAGIO CAGRO,
ET AL., oppositors-appellants..
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar,
on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation
clause is not signed by the attesting witnesses. There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives
their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with
costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
G.R. No. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio
Vega
and
Benjamin H. Tirot for appellee.

Felix

D.

Bacabac

for

appellant.

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon
Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma,
sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said
exhibits were not executed in conformity with law. The appeal was made directly to this Court because the
value of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that
the dispositions were procured through undue influence. These grounds were abandoned at the hearing in
the court below, where the issue was concentrated into three specific questions: (1) whether the testament
of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective.
These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao
and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that
he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the
will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in
the presence of Yap alone, and returned it with the statement that no one would question it because the
property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of
the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the
house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and
contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then
over 80 years old, should leave her own house in order to execute her will, when all three witnesses could
have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the
testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when
Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant
nothing to either. It is well known that what is to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will,
and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date,
nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to
have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that
was later proved to have been separated from the deceased's quarters, and standing at a much lower level,

so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect
examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the
servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it
was plainly induced by two highly leading questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of
service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the
testament or of the codicil, and the identity of the person who inserted the date therein, are not material and
are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the
transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil
and testament (likelegado, partes iguales, plena propiedad) is proof that its contents were not understood by
the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that
the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this
codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at
the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion.
On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling
past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878;
The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil.
Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the
new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is
thereafter required is that "every will must be acknowledged before a notary public by the testator and the
witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in
the case before us. The subsequent signing and sealing by the notary of his certification that the testament
was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the
testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can
not be said to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem
loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of
the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge
the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion,
JJ.,concur.
G.R. No. L-32213 November 26, 1973
AGAPITA
N.
CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of
Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the
last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of
the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through
fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the
testator having been fully informed of the content thereof, particularly as to what properties he was disposing
and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her
objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari
which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the
supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to
attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the
will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and
Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested

and subscribed by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public to acknowledge the
same. As the third witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial
court, maintains that there is substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The notary
public before whom the will was acknowledged cannot be considered as the third instrumental witness since
he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third
witness were the notary public himself, he would have to avow assent, or admit his having signed the will in
front of himself. This cannot be done because he cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the making of the will. To permit such a situation to
obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one
of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as
it directly involves him and the validity of his own act. It would place him in inconsistent position and the very
purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be
thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482;
Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641;
Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W.
Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve
the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public
and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses,
and not as acknowledgingwitnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would
have the effect of having only two attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the
notary public for or that purpose. In the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will
and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.
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