Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-15153

August 31, 1960

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

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
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,
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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.

GUTIERREZ, JR. J.:

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 partepraying 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.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to
the due execution of this document, the Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a merejurat, is fatally defective. Any one of these defects is sufficient to
deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the
due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator and the witnesses.
A notarial will executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC)
of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking
huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at
patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa
lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang
lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari
ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at

kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981

Book No. 43 ; PTR-152041-1/2/81-Manila

Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages
of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as
the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will
is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioners right to occupy the properties of the decedent. 3 It also
asserted that contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance
with law. She pointed out that decedents signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments are among the central matters to
this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect
to the formalities in the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositors arguments
that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981,

ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng

lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification
and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters placed
on upper part of each page and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first page contains the entire text of
the testamentary dispositions, and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the
will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages
used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we
replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause
to state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for
the insertion of the number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation clause to state the number of pages
contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much
greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." 17 It was further
observed that "it cannot be denied that the x x x requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of
pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not
state the number of pages used in the will, however, the same was found in the last part of the body
of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 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." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the
Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only

two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the
Will. The will does not even contain any notarial acknowledgment wherein the number of pages of
the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of
bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with all the requirements of
article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project
consists in the [liberalization] of the manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution
of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction. 28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination
of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all

persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other,30 the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which
can be supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one anothers presence should be considered
a fatal flaw since the attestation is the only textual guarantee of compliance. 32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages. 33 The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as was the
situation inSingson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the fruition of the
testators incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before the
notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these
two classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms part
of the will. On the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing
the value of the instrumental witnesses signatures on each and every page, the fact must be noted
that it is the attestation clause which contains the utterances reduced into writing of the testamentary

witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is written; the fact that the testator had signed
the will and every page thereof; and that they witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is
equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of
equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of
contemplation can those words be construed as an acknowledgment. An acknowledgment is the act
of one who has executed a deed in going before some competent officer or court and declaring it to
be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is his/her own free
act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An acknowledgement is
not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for
the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A
notarial will that is not acknowledged before a notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign
each and every page of the will on the left margin, except the last; and that all the pages shall be
numbered correlatively in letters placed on the upper part of each page. In this case, the decedent,
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is
a line of thought that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:

Republic of the Philippines

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 petitionerappellant. 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, petitionerappellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10907

June 29, 1957

AUREA MATIAS, petitioner,

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

The Lawphil Project - Arellano Law FoundationRepublic of the Philippines

SUPREME COURT
Manila
EN BANC
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.
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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. 6284,1just 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
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 be fore 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.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
April 29, 1953
G.R. No. L-5826
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
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 lefthand 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
June 30, 1955
G.R. No. L-7179
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.
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 yea rs 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 (like legado, 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.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

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 respondent-appellee, 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.
EN BANC
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND
DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA,Respondents.
[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND
DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA.
DE PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE
PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S.
Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino
for petitioner administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del
Rosario Sarmiento, Et. Al.

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE; TESTATRIXS
DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER WILL. The declarations in
court of the opthalmologist as to the condition of the testatrixs eyesight fully establish the fact that her
vision remained mainly for viewing distant objects and not for reading print; that she was, at the time of the
execution of the second will on December 29, 1960, incapable of reading and could not have read the
provisions of the will supposedly signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR. Upon its face,
the testamentary provisions, the attestation clause and acknowledgment were crammed together into a
single sheet of paper, apparently to save on space. Plainly, the testament was not prepared with any regard
for the defective vision of Da. Gliceria, the typographical errors remained uncorrected thereby indicating
that the execution thereof must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of ones worldly possessions should be embodied in an
informal and untidy written instrument; or that the glaring spelling errors should have escaped her notice if
she had actually retained the ability to read the purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE
READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE. The rationale behind the requirement of
reading the will to the testator if he is blind or incapable of reading the will himself is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where as in the 1960 will there is
nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the

testator is blind, the will shall be read to him twice," have not been complied with, the said 1960 will suffer
from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS; GROUNDS FOR
REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR
UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR. Considering that the alleged deed of sale was
executed when Gliceria del Rosario was already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a case for annulment might be filed
against the estate or heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to
the estate. This, plus her conduct in securing new copies of the owners duplicate of titles without the courts
knowledge and authority and having the contract bind the land through issuance of new titles in her
husbands name, cannot but expose her to the charge of unfitness or unsuitability to discharge the trust,
justifying her removal from the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT OF
POSSESSION OF REAL PROPERTY." On the matter of lis pendens, the provisions of the Rules of Court are
clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the title or the right of possession of (such)
real property."
cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy here is simply the fitness or
unfitness of said special administratrix to continue holding the trust, it does not involve or affect at all the
title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles
to the properties.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No.
62618) admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario dated
29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain
alleged heirs of said decedent seeking (1) to compel the probate court to remove Consuelo S. GonzalesPrecilla as special administratrix of the estate, for conflict of interest, to appoint a new one in her stead; and
(2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and
81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be
properly belonging to the estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:

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Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no
descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old more
or less, and possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court
of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario,
executed on 29 December 1960, and for her appointment as special administratrix of the latters estate, said
to be valued at about P100,000.00, pending the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a
legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and
children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad
de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and
Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso
de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio,
the latter five groups of persons all claiming to be relatives of Doa Gliceria within the fifth civil degree.

The oppositions invariably charged that the instrument executed in 1960 was not intended by the deceased
to be her true will; that the signatures of the deceased appearing in the will was procured through undue
and improper pressure and influence the part of the beneficiaries and/or other persons; that the testatrix did
not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that
the formalities required by law for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of
Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, on the ground that the latter possesses interest adverse to the estate.
After the parties were duly heard, the probate court, in its order of 2 October 1965, granted petitioners
prayer and appointed her special administratrix of the estate upon a bond for P30,000.00. The order was
premised on the fact the petitioner was managing the properties belonging to the estate even during the
lifetime of the deceased, and to appoint another person as administrator or co administrator at that stage of
the proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to
require the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965. The court denied this motion on 22 October 1965 for being premature, it being
unaware that such deposit in the name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga,
Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special
administratrix. It was their claim that the special administratrix and her deceased husband, Alfonso Precilla,
2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale dated 10
January 1961 allegedly conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels
of land and the improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed
value of P334,050.00. Oppositors contended that since it is the duty of the administrator to protect and
conserve the properties of the estate, and it may become necessary that, an action for the annulment of the
deed of sale land for recovery of the aforementioned parcels of land be filed against the special
administratrix, as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was alleged
that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her
capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario, filed with Branch IV of
the Court of First Instance of Manila a motion for the issuance of new copies of the owners duplicates of
certain certificates of title in the name of Gliceria del Rosario, supposedly needed by her "in the preparation
of the inventory" of the properties constituting the estate. The motion having been granted, new copies of
the owners duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT
Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965, according to the
oppositors, the same special administratrix presented to the Register of Deeds the deed of sale involving
properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10
January 1961 in favor of Alfonso Precilla, and, in consequence, said certificates of title were cancelled and
new certificates (Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario
(Exhibit "D"). In declaring the due execution of the will, the probate court took note that no evidence had
been presented to establish that the testatrix was not of sound mind when the will was executed; that the
fact that she had prepared an earlier will did not, prevent her from executing another one thereafter; that
the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page
does not render the latter invalid; that, the erasures and alterations in the instrument were insignificant to
warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were
noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that
petitioner had already shown capacity to administer the properties of the estate and that from the provisions
of the will she stands as the person most concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being
docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion of 14 December 1965 for
the removal of the then special administratrix, as follows:
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"It would seem that the main purpose of the motion to remove the special administratrix and to appoint
another one in her stead, is in order that an action may be filed against the special administratrix for the
annulment of the deed of sale executed by the decedent on January 10, 1961. Under existing documents,
the properties sold pursuant to the said deed of absolute sale no longer forms part of the estate. The alleged
conflict of interest is accordingly not between different claimants of the same estate. If it is desired by the
movants that an action be filed by them to annul the aforesaid deed absolute sale, it is not necessary that
the special administratrix be removed and that another one be appointed to file such action. Such a course
of action would only produce confusion and difficulties in the settlement of the estate. The movants may file
the aforesaid proceedings, preferably in an independent action, to secure the nullity of the deed of absolute
even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the
decedent, the same was also denied, for the reason that if the movants were referring to the old titles, they
could no longer be produced, and if they meant the new duplicate copies thereof that were issued at the
instance of the special administratrix, there would be no necessity therefor, because they were already
cancelled and other certificates were issued in the name of Alfonso Precilla. This order precipitated the
oppositors filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al.
v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the
Register of Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and
81737 in the name of Alfonso Precilla. And when said official refused to do so, they applied to the probate
court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a lis pendens notice
in the aforementioned titles contending that the matter of removal and appointment of the administratrix,
involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this
motion on 12 November 1966, oppositors filed another mandamus action, this time against the probate
court and the Register of Deeds. The case was docketed and given due course in this Court as G.R. No. L26864.
Foremost of the questions to be determined here concerns the correctness of the order allowing the probate
of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario,
during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a
language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin
Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December 1960,
consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales
uniformly declared that they were individually requested by Alfonso Precilla (the late husband of petitioner
special administratrix) to witness the execution of the last will of Doa Gliceria A. del Rosario; that they
arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of
29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was
being aided by Precilla when she walked; 3 that the will, which was already prepared, was first read
"silently" by the testatrix herself before she signed it; 4 that he three witnesses thereafter signed the will in
the presence of the testatrix and the notary public and of one another. There is also testimony that after the
testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and deed, the
notary public asked for their respective residence certificates which were handed to him by Alfonso Precilla,
clipped together; 5 that after comparing them with the numbers already written on the will, the notary
public filled in the blanks in the instrument with the date, 29 January 1960, before he affixed his signature
and seal thereto. 6 They also testified that on that occasion no pressure or influence has been exerted by
any person upon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident
from the records. The will appeared to have been prepared by one who is not conversant with the spelling of
Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan
accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8 admitted their relationship or
closeness to Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria del Rosario on 29
December 1960 to witness an important document, 10 and who took their residence certificates from them a
few days before the will was signed. 11 Precilla had met the notary public and witnesses Rosales and Lopez
at the door of the residence of the old woman; he ushered them to the room at the second floor where the

signing of the document took place; 12 then he fetched witness Decena from the latters haberdashery shop
a few doors away and brought him to, the house the testatrix. 13 And when the will was actually executed
Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the correctness of the probate courts
ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective
that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena,
Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said
ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when
Doa Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract
(opaque lens), 15 and that it was "above normal in pressure", denoting a possible glaucoma, a disease that
leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:
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"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from
which you could inform the court as to the condition of the vision of the patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which
showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left
eye with her correction 20 over 300 (20/300).
"Q In laymans language, Doctor, what is the significance of that notation that the right had a degree of 20
over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty
feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance sight, not for near."

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(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes
Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting
fingers," 17 at five feet. The cross-examination of the doctor further elicited the following responses:
jgc:chanrobles.com .ph

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to my clinic for further examination and then
sometime later glasses were prescribed.
x

"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye which I prescribed the eye which I
operated she could see only forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n.,
hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that
Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963
with apparently good vision", the doctor had this to say:
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"Q When yon said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report
was made on pure recollections and I recall she was using her glasses although I recall also that we have to
give her medicines to improve her vision, some medicines to improve her identification some more.
x

"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."

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(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand
knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic
lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading
print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there
is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and
could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth
noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D",
acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the word
"and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Doa Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of ones worldly possessions should be embodied in an informal
and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so. The record is thus convincing that
the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and
that its admission to probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen
tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs,
Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page, since the acts shown
do not require vision at close range. It must be remembered that with the natural lenses removed, her eyes
had lost the power of adjustment to near vision, the substituted glass lenses being rigid and uncontrollable
by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal
reading distances. Writing or signing of ones name, when sufficiently practiced, becomes automatic, so that
one need only to have a rough indication of the place where the signature is to be affixed in order to be able
to write it. Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", et seq.,
reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance:
the signatures in the checks are written far above the printed base, lines, and the names of the payees as
well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much
firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant
oppositors contend, not unlike a blind testator, and the due execution of her will would have required
observance of the provisions of Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged."
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The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading
the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood by the handicapped testator, thus
making them truly reflective of his desire, is evidenced by the requirement that the will should be read to
the latter, not only once but twice, by two different persons, and that the witnesses have to act within the
range of his (the testators) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the above requisites
have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from
infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate
court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the
estate of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in the special administratrix of an interest
adverse to that of the estate. It was their contention that through fraud her husband had caused the
deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership
of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned
out that since the properties were already sold no longer form part of the estate. The conflict of interest
would not be between the estate and third parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the special administratrix in the action for annulment
that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of
the conveyance or sale of the properties. In short, if proper, the action for annulment would have to be
undertaken on behalf of the estate by the special administratrix, affecting as it does the property or rights of
the deceased. 20 For the rule is that only where there is no special proceeding for the settlement of the
estate of the deceased may the legal heirs commence an action arising out of a right belonging to their
ancestor. 21
There is no doubt that to settle the question of the due execution and validity of the deed of sale, an
ordinary and separate action would have to be instituted, the matter not falling within the competence of the
probate court. 22 Considering the facts then before it, i.e., the alleged deed of sale having been executed by
Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that the consideration
of P30,000.00 seems to be unconscionably small for properties with a total assessed value of P334,050.00,
there was likelihood that a case for annulment might indeed be filed against the estate or heirs of Alfonso
Precilla. And the administratrix, being the widow and heir of the alleged transferee, cannot be expected to
sue herself in an action to recover property that may turn out to belong to the estate. 22 Not only this, but
the conduct of the special administratrix in securing new copies of the owners duplicates of TCT Nos. 66201,
66202, and 66204, without the courts knowledge or authority, and on the pretext that she needed them in
the preparation of the inventory of the estate, when she must have already known by then that the
properties covered therein were already "conveyed" to her husband by the deceased, being the latters
successor, and having the contract bind the land through issuance of new titles in her husbands name
cannot but expose her to the charge of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors motion to require the Hongkong
and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the
same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken
action on the complaint against the alleged withdrawals from the bank deposits of the deceased, because as
of that time the court had not yet been apprised that such deposits exist. Furthermore, as explained by the
special administratrix in her pleading of 30 October 1965, the withdrawals referred to by the oppositors
could be those covered by checks issued in the name of Gliceria del Rosario during her lifetime but cleared

only after her death. That explanation, which not only appears plausible but has not been rebutted by the
petitioners-oppositors, negates any charge of grave abuse in connection with the issuance of the order here
in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right of possession of (such) real property." 23 In
the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos. 81735,
81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As previously
discussed in this opinion, however, that case is concerned merely with the correctness of the denial by the
probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix
of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or
unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all the
title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles
to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of
Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious,
the appealed order is set aside and the court below is ordered to remove the administratrix, Consuelo
Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doa Gliceria Avelino del
Rosario as special administrator for the purpose of instituting action on behalf of her estate to recover the
properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is
dismissed. No costs.
Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur.
Zaldivar and Castro, JJ., took no part.
Barredo, J., is on leave

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and
HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the
then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June
1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who
were present at the execution, the testator did not read the final draft of the will himself. Instead,
private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977.
On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado"
was executed changing some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not personally read the final draft
of the codicil. Instead, it was private respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3
January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial
Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as required by law; that the testator was insane or
otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that
the will was executed under duress, or influence of fear and threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the
testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's
last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was substantially complied with when

both documents were read aloud to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of the drafted will was
served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at
the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading
requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally
blind at the time the will and codicil were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents
of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3)
feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his
first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator
could still read on the day the will and the codicil were executed but chose not to do so because of
"poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded
that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the
time his will and codicil were prepared, the fact remains and this was testified to by his witnesses,
that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for
one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been
complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the
five-paged codicil who read the same aloud to the testator, and read them only once, not twice as
Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of

the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity
to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido answered
in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten
documents. This is especially true when we consider the fact that the three instrumental witnesses were
persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate
of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other
things, that the testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the petition for hearing on August 20,
1979 but the same and subsequent scheduled hearings were postponed for one reason to another.
On May 29, 1980, the testator passed away before his petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his
appointment as special administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the appointment of a special administrator for his
estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged date
of its execution, the testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the
signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while he
was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo
Caballero was in good health and was not unduly influenced in any way in the execution of his will.
Labuca also testified that he and the other witnesses attested and signed the will in the presence of
the testator and of each other. The other two attesting witnesses were not presented in the probate
hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will
and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it

was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for
the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and
ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805
of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be
considered as having substantialy complied with the requirements of Art. 805 of the
Civil Code. What appears in the attestation clause which the oppositors claim to be
defective is "we do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and Testament, and he has signed
the same and every page thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator and in the presence of each
and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was
denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners

assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is
the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article
805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation should state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be
interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the
attesting witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute,
Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate
two persons who would read the will and communicate its contents to him in a practicable manner. On the
other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.

Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify
that the instrument has been executed before them and to the manner of the execution the
same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and
once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities
required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will, so that in case of failure of the memory
of the attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written;
(2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages; 23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and attested to by the
witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of
the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to
the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives 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 with respect to the formalities in
the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page thereof

bearing the respective signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the three attesting
witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will
in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper published as a will is
only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that 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. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed
in the presence of the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other
hand, although the words "in the presence of the testator and in the presence of each and all of us"

may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed the will and every page thereof in
the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will
was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of
effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein
he urged caution in the application of the substantial compliance rule therein, is correct and should be
applied in the case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or

imperfections would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of
each other. 35 In such a situation, the defect is not only in the form or language of the attestation clause
but the total absence of a specific element required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause statement, or an implication
thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all
of its pages and that said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied
by the text of the will or a consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the
will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that
one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will, hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be disregarded. The subsequent cases of Avera vs.

Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of
Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state
that the witnesses signed the will and each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants
rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43
Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the

Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions
of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shallstate the number of sheets or
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 three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.
Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule
and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended

regarding the contents of the attestation clause were mandatory, and noncompliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
829."65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty,
nor does it open the door to serious consequences. The later decisions do tell us when and where to
stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part
of the document or supply missing details that should appear in the will itself. They only permit a probe
into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS
its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of
the said decedent.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding
Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de
Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,
1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of

the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus
and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified that their deceased mother understood
English, the language in which the holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should contain the day, month and year
of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed
the probate of the holographic Will on the ground that the word "dated" has generally been held to
include the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas
de Jesus, is hereby disallowed for not having been executed as required by the law.
The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which
reads:
ART. 810. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for
non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month,
and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and day, and that if
any of these is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy
The underlying and fundamental objectives permeating the provisions of the law on
wigs 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 sufficien 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 modem tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better than
that which the law can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been

executed substantially in accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may suffer from some imperfection
of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14003

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of
First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of
the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9,
1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less,
before the death of the testatrix, as the same was handed to him and his wife; that the
witness testified also that he recognized all the signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general
power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testified that the penmanship appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the signatures appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said witness, in answer
to a question of his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on
the same transcript of the stenographic notes, when the same witness was asked by counsel
if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was asked again whether the
penmanship referred to in the previous answer as appearing in the holographic will (Exh. C)

was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by
undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the
testatrix did not seriously intend the instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the
will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as
to require the compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no available witness of the testator's
hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of Article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can
not be ignored that the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem
it necessary", which reveal that what the law deems essential is that the Court should be convinced
of the will's authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the
Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce
la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe
acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento
olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales.
La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor
garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la
frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o
no testigos y dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su
significacion, para responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference
can be drawn from a party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded
to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.
EN BANC
[G.R. No. L-12190. August 30, 1958.]
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, PetitionerAppellant, v. ILDEFONSO YAP, Oppositor-Appellee.
Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for Appellant.
Arturo M. Tolentino for Appellee.

SYLLABUS

1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. The
execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity.

DECISION

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas
Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly executed by the deceased, substantially in these
words:
jgc:chanrobles.com .ph

"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan

sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang sumusunod:

chanrob1es virtual 1aw library

Vicente Esguerra, Sr. 5 Bahagi

Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking
asawang si Ildefonso D. Yap sa kondisyong siyay magpapagawa ng isang Health Center na nagkakahalaga
ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pagalang
Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay bahala na ang aking asawa ang magpuno
upang matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will,
nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to
probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
chanrob1es virtual 1aw library

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente
Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered
or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the
bar examinations. The latter replied it could be done without any witness, provided the document was
entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna
Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it.
In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him
to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these
she showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted
the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her
husband, asked Felina for the purse; and being afraid of him by reason of his well-known violent temper,
she- delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to
demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before
she had taken the purse to the toilet, opened it and read the will for the last time. 2
From the oppositors proof it appears that Felicidad Esguerra had been suffering from heart disease for
several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr.
Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for
several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting
places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered
several attacks, the most serious of which happened in the early morning of the first Monday of November
1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and owned by the Yap spouses. Physicians help was hurriedly called,
and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head
held high by her husband. Injections and oxygen were administered. Following the doctors advice the
patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs.

Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will,
and could have made no will on that day.
The trial judge refused to credit the petitioners evidence for several reasons, the most important of which
were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her
husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she
did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have allowed the former to see and read the will several
times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez
and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would
carry it around, even to the hospital, in her purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that
the will was there, it is hard to believe that he returned it without destroying the will, the theory of the
petitioner being precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositors evidence that Felicidad did
not and could not have executed such holographic will.
In this appeal, the major portion of appellants brief discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were
presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The
oppositors brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the
same matters, because in our opinion the case should be decided not on the weakness of the opposition but
on the strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms,
including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is
subject to no other form and may be made in or out of the Philippines, and need not be witnessed."
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This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for
fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses
in each and every page; such witnesses to attest to the number of sheets used and to the fact that the
testator signed in their presence and that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent
substitution of wills, to guarantee their truth and authenticity (Abangan v. Abangan, 40 Phil., 476) and to
avoid that those who have no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendoza v. Pilapil, 40 off. Gaz., 1855). However, formal imperfections may be brushed
aside when authenticity of the instrument is duly proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3 p.
194.) .
Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the
courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient,
if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang v.
Delfinado 34 Phil., 291; Tolentino v. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of
other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as
stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the
hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material
proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not
to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code,
"it shall be necessary that at least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar
with decedents handwriting) and if the court deem it necessary, expert testimony may be resorted to."
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The witnesses so presented do not need to have seen the execution of the holographic will. They may be
mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testators
hand. However, the oppositor may present other witnesses who also know the testators handwriting, or
some expert witnesses, who after comparing the will with other writings or letters of the deceased, have
come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123).
And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face
of the document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence
are not available. And then the only guaranty of authenticity 3 the testators handwriting has
disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses
who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the
oppositor prove that such document was not in the testators handwriting? His witnesses who know
testators handwriting have not examined it. His experts can not testify, because there is no way to compare
the alleged testament with other documents admittedly, or proven to be, in the testators hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the
form thereof, and the nether millstone of his inability to prove its falsity. Again the proponents witnesses
may be honest and truthful; but they may have been shown a faked document, and having no interest to
check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers
boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or
lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the
witness (or witnesses) could simply stick to his statement: he has seen and read a document which he
believed was in the deceaseds handwriting. And the court and the oppositor would practically be at the
mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will.
Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by
secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not
have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule
123; Art. 830-New Civil Code.) .
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost
or stolen 4 an implied admission that such loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689)
who shall subscribe it and require its identity to be established by the three witnesses who depose that they
have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that
the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation
of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the authenticity of the will." As it is universally
admitted that the holographic will is usually done by the testator and by himself alone, to prevent others
from knowing either its execution or its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whether in the face of the document
itself they think the testator wrote it. Obviously, this they cant do unless the will itself is presented to the
Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will
if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the
document is not presented for their examination. If it be argued that such choice is not essential, because
anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and
they have the right and privilege to comply with the will, if genuine, a right which they should not be denied
by withholding inspection thereof from them.

We find confirmation of these ideas about exhibition of the document itself in the decision of the
Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing
testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and
some words having been torn from it. Even in the face of allegations and testimonial evidence (which was
controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in
accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo
civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con
expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se llenaron todos
esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se
emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento
de ser presentado a la Autoridad competente, para su adveracion y protocolizacion; y como consecuencia
ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estar firmado por
el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan
ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere,
o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . ."
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This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter. 6
"PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E depues que los herederos e sus
fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la tierra, o al juez fasta Vl meses y el
obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e
por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda." (Art. 689, Scaevola - Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his
holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to
be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of
a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of
Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this
controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the
sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills,
ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the
nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the
testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic
will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately
to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day,
the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to lend themselves to any fraudulent scheme
to distort his wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer

the whole fraud this way: after making a clever or passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the
latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an
"accident" the oppositors have no way to expose the trick and the error, because the document itself is
not at hand. And considering that the holographic will may consist of two or three pages, and only one of
them need be signed, the substitution of the unsigned pages, which may be the most important ones, may
go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of
forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they
allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judges disbelief.
In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that
the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte
and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to
reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to
conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was
not lacking: for instance, her husbands trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to
measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA
deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509;
and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.
On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the

testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

[G.R. No. 123486. August 12, 1999]

EUGENIA
RAMONAL
CODOY,
and
MANUEL
RAMONAL, petitioners, vs. EVANGELINE
R.
CALUGAY,
JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents.
DECISION
PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals [1] and
its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers, enough to probate said
will. Reversal of the judgment appealed from and the probate of the holographic will
in question be called for. The rule is that after plaintiff has completed presentation of
his evidence and the defendant files a motion for judgment on demurrer to evidence
on the ground that upon the facts and the law plaintiff has shown no right to relief, if
the motion is granted and the order to dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered for appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing
the probate of the holographic will of the testator Matilde Seo Vda. de Ramonal. [2]
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees
and legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition[3] for probate of the holographic
will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of
sound and disposing mind when she executed the will on August 30, 1978, that there was no
fraud, undue influence, and duress employed in the person of the testator, and the will was
written voluntarily.
The assessed value of the decedents property, including all real and personal property was
about P400,000.00, at the time of her death.[4]
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition [5] to
the petition for probate, alleging that the holographic will was a forgery and that the same is even
illegible. This gives an impression that a third hand of an interested party other than the true hand
of Matilde Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on the will after every
disposition is out of the ordinary. If the deceased was the one who executed the will, and was not
forced, the dates and the signature should appear at the bottom after the dispositions, as regularly
done and not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper pressure and influence on
the part of the beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary evidence. Petitioners
instead of presenting their evidence, filed a demurrer [6] to evidence, claiming that respondents
failed to establish sufficient factual and legal basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which
reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence

having being well taken, same is granted, and the petition for probate of the document

(Exhibit S) on the purported Holographic Will of the late Matilde Seo Vda. de
Ramonal, is denied for insufficiency of evidence and lack of merits. [7]
On December 12, 1990, respondents filed a notice of appeal,[8] and in support of their appeal,
the respondents once again reiterated the testimony of the following witnesses, namely: (1)
Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal
Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of
their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was filed. He
produced and identified the. records of the case. The documents presented bear the signature of
the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison
of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party
against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and
identify the voters affidavit of the decedent. However, the voters affidavit was not produced for
the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was
her aunt, and that after the death of Matildes husband, the latter lived with her in her parents
house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her signature and handwriting as she
used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her
various tenants of commercial buildings, and the deceased always issued receipts. In addition to
this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts,
and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the
signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro,
he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased
in connection with the intestate proceedings of her late husband, as a result of which he is
familiar with the handwriting of the latter. He testified that the signature appearing in the

holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can
not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the application
of the deceased for pasture permit and was familiar with the signature of the deceased, since the
deceased signed documents in her presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of time she
became familiar with the signature of the deceased.She testified that the signature appearing in
the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:

Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R.
Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline
R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision[9] ruling that the appeal was
meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.
Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

x x x even if the genuineness of the holographic will were contested, we are of the
opinion that Article 811 of our present civil code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have been
present at the execution of the holographic will, none being required by law (art. 810,
new civil code), it becomes obvious that the existence of witnesses possessing the

requisite qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must be
witnesses who know the handwriting and signature of the testator and who can declare
(truthfully, of course, even if the law does not express) that the will and the signature
are in the handwriting of the testator. There may be no available witness acquainted
with the testators hand; or even if so familiarized, the witness may be unwilling to
give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may
thus become an impossibility. That is evidently the reason why the second paragraph
of article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for resort to expert evidence to
supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291;
Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement
can be considered mandatory only in case of ordinary testaments, precisely because
the presence of at least three witnesses at the execution of ordinary wills is made by
law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (art.10), and the rule requiring production of three witnesses must
be deemed merely permissive if absurd results are to be avoided.
Again, under Art.811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the
court should be convinced of the wills authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand,
if no competent witness is available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting experts. The duty of the
court, in fine, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production of three
witnesses is merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available lines of
inquiry, for the state is as much interested in the proponent that the true intention of
the testator be carried into effect. And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable inference can be drawn from a partys
failure to offer expert evidence, until and unless the court expresses dissatisfaction
with the testimony of the lay witnesses.[10]
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and
other witnesses definitely and in no uncertain terms testified that the handwriting and signature
in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by
the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been able
to present credible evidence to prove that the date, text, and signature on the holographic will
were written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic
will of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code
are permissive or mandatory. The article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a mandatory order. We have ruled that shall in a statute
commonly denotes an imperative obligation and is inconsistent with the idea of discretion and
that the presumption is that the word shall, when used in a statute is mandatory.[11]
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that
aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the
true intent of the deceased. An exhaustive and objective consideration of the evidence is
imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly
that they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify
the signature of the deceased in the voters affidavit, which was not even produced as it was no
longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan,
Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda
de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?

A. From the land rentals and commercial buildings at Pabayo-Gomez streets.[12]

xxx
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?

A. Yes, sir.[13]

xxx
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the
receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of
the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.[14]

xxx
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which
you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde

Q. To whom?
A. To her creditors.[15]

xxx
Q. You testified that at the time of her death she left a will. I am showing to you a document with its
title tugon is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit S, there is that handwritten tugon, whose handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.[16]

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she
either mailed or gave to her tenants. She did not declare that she saw the deceased sign a
document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the
will was not found in the personal belongings of the deceased but was in the possession of Ms.
Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de
Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mothers possession.
Q. So, it was not in your possession?
A. Sorry, yes.

Q. And when did you come into possession since as you said this was originally in the possession of
your mother?
A. 1985.[17]

xxx
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and
therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.[18]

In her testimony it was also evident that Ms. Binanay kept the fact about the will from
petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of
keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda.
de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to her
building to collect rentals, is that correct?
A. Yes, sir.[19]

xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in
the word Vda.?

A. Yes, a little. The letter L is continuous.

Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards
letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.[20]

xxx
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a
document marked as Exhibit R. This is dated January 8,1978 which is only about eight months
from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully
written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she
was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just tried to explain
yourself out because of the apparent inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic
will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature
was written on a fluid movement. x x x And in fact , the name Eufemia R. Patigas here refers to
one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the
alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will
notice the hesitancy and tremors, do you notice that?

A. Yes, sir.[21]

Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the
period of 22 years. Could you tell the court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde
Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]

xxx
Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30, 1978 there is a
signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never declared that
she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am
related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]

xxx
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate
children?

A. As far as I know they have no legitimate children.[25]

xxx
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that,
Fiscal?
A. It is about the project partition to terminate the property, which was under the court before. [26]

xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of
the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda
de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]

xxx

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other
assistance wherein you were rendering professional service to the deceased Matilde Vda de
Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to show that I
have assisted then I can recall.[28]

xxx
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this document, Fiscal
Waga and tell the court whether you are familiar with the handwriting contained in that document
marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court
whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose
signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.[29]

xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing
in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely
supposing that it seems to be her signature because it is similar to the signature of the
project of partition which you have made?

A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate
and disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,[31] ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals, [32] we said that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will
of the testator, which is why if the holographic will is contested, that law requires three witnesses
to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay,
she revealed that the will was in her possession as early as 1985, or five years before the death of
the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance
at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners
asked Ms. Binanay to compare the documents which contained the signature of the deceased
with that of the holographic will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, [33] and the signatures
in several documents such as the application letter for pasture permit dated December 30, 1980,
[34]
and a letter dated June 16, 1978,[35] the strokes are different. In the letters, there are continuous
flows of the strokes, evidencing that there is no hesitation in writing unlike that of the

holographic will. We, therefore, cannot be certain that the holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce evidence in
support of their opposition to the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
No costs.
SO ORDERED.
Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
with the rights of said Church, and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance,
that the holographic Will contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of the Civil Code
reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic
will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions
and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should be admitted to probate
although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The
parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit
"C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw,
the Court will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad
K. Kalaw is hereby denied.
SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not theoriginal unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. 1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895."

However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that the entire
Will is voided or revoked for the simple reason that nothing remains in the Will after that which could
remain valid. To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por
estar esa disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en
nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular
este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara
nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor motivo cuando las palabras

enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda

alguna acerca del pensamiento del testador, o constituyan meros accidentes de
ortografia o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo substancial la express
voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29
de Noviembre de 1916, que declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del guarismo ultimo del ao en que fue
extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.