1

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.

resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu
6
where it remained until the conclusion of the probate proceedings.
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
7
the testator therein.

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,
1
Atty. Filoteo Manigos, in the preparation of that last will. 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
2
not appear to be related to the testator.
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
3
heard by the probate court. 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
4
in its order of March 6, 1981.
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
5
appointment of a special administrator for his estate.
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

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
8
had died by then.
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
9
executed in accordance with all the requisites of the law.
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
10
decision 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
11
compliance with the requirement of the law."
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's resolution
12
of January 14, 1992, 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
13
death. Under the Civil Code, there are two kinds of wills which a
14
testator may execute. 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
15
public by a testator and the attesting witness. 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
16
then again, by the notary public before whom it is acknowledged.
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
17
a language or dialect known to the testator.
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
18
need not even be known to the attesting witnesses. 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
19
before them and to the manner of the execution the same. 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
20
required by law has been observed. 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

21
still be proved.
Under the third paragraph of Article 805, such a clause, the complete
22
lack of which would result in the invalidity of the will, 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
23
any increase or decrease in the pages; 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
24
and attested to by the witnesses.
Further, by attesting and subscribing to the will, the witnesses
thereby declare the due execution of the will as embodied in the
25
attestation clause. The attestation clause, therefore, provide strong
legal guaranties for the due execution of a will and to insure the
26
authenticity thereof. As it appertains only to the witnesses and not
27
to the testator, it need be signed only by them. 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
28
absence of the testator and its witnesses.
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
29
execution of wills. . . .
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
30
hereto. 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
31
identification.
32

In Taboada vs. Rizal, 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
33
stamped with the imprimatur of effectivity.
We believe that the further comment of former Justice J.B.L.
34
Reyes 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
35
other. 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
36
first laid down in the case of Abangan vs. Abangan, 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.
37
The subsequent cases of Avera vs. Garcia, Aldaba vs.
38
39
40
Roque, Unson vs. Abella, Pecson vs. Coronel, Fernandez vs.
41
42
Vergel de Dios, et al., and Nayve vs. Mojal, et al. 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
43
44
45
Saguinsin, In re Will of Andrada, Uy Coque vs. Sioca, In re Estate
46
47
of Neumark, and Sano vs. Quintana.
48

Gumban vs. Gorecho, et al., 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
49
50
cases of Quinto vs. Morata, Rodriguez vs. Alcala, Enchevarria vs.
51
52
Sarmiento, and Testate Estate of Toray went the way of the ruling
53
as restated in Gumban. But De Gala vs. Gonzales, et al., Rey vs.
54
55
Cartagena, De Ticson vs. De Gorostiza, Sebastian vs.
56
57
58
Panganiban, Rodriguez vs. Yap, Grey vs. Fabia, Leynez vs.
59
60
61
Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs.
62
63
64
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, 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
65
829."
66

The so-called liberal rule, the Court said in Gil vs. Murciano, "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
67
of the attestation clause and ultimately, of the will itself.
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.
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing
the will of Antero Mercado dated January 3, 1943. The will is written
in the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose
of three pages and all them were signed in the presence of
the testator and witnesses, and the witnesses in the

presence of the testator and all and each and every one of
us witnesses.
In testimony, whereof, we sign this statement, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA

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.

GUTIERREZ, JR. J.:

(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.

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. R1713, 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.

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.

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.

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.

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.

Wherefore, the appealed decision is hereby affirmed, with against

the petitioner. So ordered.

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.

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.

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?

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.

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

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.
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted
to probate Ana Abangan's will executed July, 1916. From this decision
the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two
sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these
omissions, according to appellants' contention, are defects whereby
the probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 (which is the one applicable in
the case) evidently has for its object (referring to the body of the will
itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are
wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures on
the left margin of said sheet would be completely purposeless. In
requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several
sheets and must have referred to the sheets which the testator and
the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this sheet,

10

already signed at the bottom, be signed twice. We cannot attribute

to the statute such an intention. As these signatures must be written
by the testator and the witnesses in the presence of each other, it
appears that, if the signatures at the bottom of the sheet guaranties
its authenticity, another signature on its left margin would be
unneccessary; and if they do not guaranty, same signatures, affixed
on another part of same sheet, would add nothing. We cannot
assume that the statute regards of such importance the place where
the testator and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do not guaranty
the authenticity of the sheet but, if repeated on the margin, give
sufficient security.
In requiring that each and every page of a will must be numbered
correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive
parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the
latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two
sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at
the bottom by the three witnesses, it is not necessary that both
sheets be further signed on their margins by the testator and the
witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a
way as to attain these primordal 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 frustative of the
testator's last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not
show that the testarix knew the dialect in which the will is written.
But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the absence of any proof to
the contrary, to presume that she knew this dialect in which this will
is written.

For the foregoing considerations, the judgment appealed from is

hereby affirmed with costs against the appellants. So ordered.
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO
G. CASTILLO, Respondents.
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, pagunawa 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;

11

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
1
Series of 1981 TAN # 1437-977-8
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
2
heirs" of the decedent. 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
3
properties of the decedent. 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
4
decedent was the widow of Bonifacio Igsolo, who died in 1965, and
the mother of a legitimate child, Asuncion E. Igsolo, who
5
predeceased her mother by three (3) months.
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
6
dated 10 August 1992. 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
7
expressing his last wishes;" 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

12

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
8
of the will.
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
9
probate. The Court of Appeals noted that the attestation clause
failed to state the number of pages used in the will, thus rendering
10
the will void and undeserving of probate.
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
11
compliance rule."
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
12
the number of pages of the will. 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
13
court, citing in the process Uy Coque v. Navas L. Sioca and In re: Will
14
of Andrada. In Uy Coque, the Court noted that among the defects of
the will in question was the failure of the attestation clause to state
15
the number of pages contained in the will. 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
16
attended with much greater difficulty."
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
17
attesting clause is fatal." It was further observed that "it cannot be
denied that the x x x requirement affords additional security against

13

the danger that the will may be tampered with; and as the
Legislature has seen fit to prescribe this requirement, it must be
18
considered material."
Against these cited cases, petitioner cites Singson v.
19
20
Florentino and Taboada v. Hon. Rosal, 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
21
of the will should be stated.
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
22

618 of the Code of Civil Procedure. 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
23
618. 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
24
wills." 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
25
testator."
26

Caneda v. Court of Appeals 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
27
the execution of the attestation clause in wills. Uy
Coque and Andrada are cited therein, along with several other cases,
as examples of the application of the rule of strict
28
construction. 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:

14

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
29
only check against perjury in the probate proceedings. (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
30
other, 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
31
itself." 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
32
only textual guarantee of compliance.
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
33
any increase or decrease in the pages. 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
34
intercalation of notarial wills. 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

35
property post mortem in the manner established in the will. 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.
36

Cagro v. Cagro 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
37
same is signed by the witnesses on the left-hand margin." While
38
three (3) Justices 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 lefthand 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
39
absence of the testator and any or all of the witnesses.
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

15

unattested will. Even if the instrumental witnesses signed the lefthand 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),
40
1981 dito sa Lungsod ng Maynila." 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
41
or deed. 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
42
document was subscribed and sworn to by the executor. 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
43
an empty meaningless act. 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, selfevident 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
44
appearing at the so-called "logical end" 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
45
be construed as mandatory. 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.
MANUEL L. LEE, petitioner, vs ATTY. REGINO B.
TAMBAGO, respondent.
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee
charged respondent Atty. Regino B. Tambago with violation of the
Notarial Law and the ethics of the legal profession for notarizing a
spurious last will and testament.

16

In his complaint, complainant averred that his father, the decedent

Vicente Lee, Sr., never executed the contested will. Furthermore, the
spurious will contained the forged signatures of Cayetano Noynay
and Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire
estate to his wife Lim Hock Lee, save for a parcel of land which he
devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before
1
respondent on June 30, 1965. Complainant, however, pointed out
2
that the residence certificate of the testator noted in the
acknowledgment of the will was dated January 5,
3
1962. Furthermore, the signature of the testator was not the same
4
as his signature as donor in a deed of donation (containing his
purported genuine signature). Complainant averred that the
signatures of his deceased father in the will and in the deed of
donation were "in any way (sic) entirely and diametrically opposed
5
from (sic) one another in all angle[s]."
Complainant also questioned the absence of notation of the
residence certificates of the purported witnesses Noynay and Grajo.
He alleged that their signatures had likewise been forged and merely
copied from their respective voters affidavits.
Complainant further asserted that no copy of such purported will was
on file in the archives division of the Records Management and
Archives Office of the National Commission for Culture and the Arts
(NCCA). In this connection, the certification of the chief of the
archives division dated September 19, 1999 stated:

In a resolution dated October 17, 2001, the Court referred the case
to the Integrated Bar of the Philippines (IBP) for investigation, report
10
and recommendation.
In his report, the investigating commissioner found respondent guilty
of violation of pertinent provisions of the old Notarial Law as found in
the Revised Administrative Code. The violation constituted an
11
12
infringement of legal ethics, particularly Canon 1 and Rule 1.01 of
13
the Code of Professional Responsibility (CPR). Thus, the
investigating commissioner of the IBP Commission on Bar Discipline
recommended the suspension of respondent for a period of three
months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285
dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable
laws and rules, and considering Respondents failure to
comply with the laws in the discharge of his function as a
notary public, Atty. Regino B. Tambago is hereby
suspended from the practice of law for one year and
Respondents notarial commission is Revoked and
Disqualified fromreappointment as Notary Public for two
14
(2) years.
We affirm with modification.

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an

AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30,
6
1965 and is available in this Office*s+ files.
Respondent in his comment dated July 6, 2001 claimed that the
complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2) that
the will in question was fake and spurious. He alleged that
complainant was "not a legitimate son of Vicente Lee, Sr. and the last
will and testament was validly executed and actually notarized by
7
respondent per affidavit of Gloria Nebato, common-law wife of
8
Vicente Lee, Sr. and corroborated by the joint affidavit of the
children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee,
9
Jr. xxx."
Respondent further stated that the complaint was filed simply to
harass him because the criminal case filed by complainant against
him in the Office of the Ombudsman "did not prosper."
Respondent did not dispute complainants contention that no copy of
the will was on file in the archives division of the NCCA. He claimed
that no copy of the contested will could be found there because none
was filed.
Lastly, respondent pointed out that complainant had no valid cause
of action against him as he (complainant) did not first file an action
for the declaration of nullity of the will and demand his share in the
inheritance.

A will is an act whereby a person is permitted, with the formalities

prescribed by law, to control to a certain degree the disposition of his
15
estate, to take effect after his death. A will may either be notarial or
holographic.
The law provides for certain formalities that must be followed in the
execution of wills. The object of solemnities surrounding the
execution of wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and
16
authenticity.
A notarial will, as the contested will in this case, is required by law to
be subscribed at the end thereof by the testator himself. In addition,
it should be attested and subscribed by three or more credible
17
witnesses in the presence of the testator and of one another.
The will in question was attested by only two witnesses, Noynay and
Grajo. On this circumstance alone, the will must be considered
18
void. This is in consonance with the rule that acts executed against
the provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged
19
before a notary public by the testator and the witnesses. The
importance of this requirement is highlighted by the fact that it was
segregated from the other requirements under Article 805 and
20
embodied in a distinct and separate provision.

17

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. It involves an extra step undertaken whereby the
signatory actually declares to the notary public that the same is his or
21
her own free act and deed. The acknowledgment in a notarial will
has a two-fold purpose: (1) to safeguard the testators wishes long
after his demise and (2) to assure that his estate is administered in
the manner that he intends it to be done.

respondent failed to comply with the requirements of both the old

Notarial Law and the Residence Tax Act. As much could be said of his
failure to demand the exhibition of the residence certificates of
Noynay and Grajo.

A cursory examination of the acknowledgment of the will in question

shows that this particular requirement was neither strictly nor
substantially complied with. For one, there was the conspicuous
absence of a notation of the residence certificates of the notarial
witnesses Noynay and Grajo in the acknowledgment. Similarly, the
notation of the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by
respondent invalidated the will.

Art. 806. Every will must be acknowledged before a notary

public by the testator and the witness. 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)

As the acknowledging officer of the contested will, respondent was

required to faithfully observe the formalities of a will and those of
22
notarization. As we held in Santiago v. Rafanan:
The Notarial Law is explicit on the obligations and duties of
notaries public. They are required to certify that the party
to every document acknowledged before him had
presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of
issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded,
considering the degree of importance and evidentiary weight
23
attached to notarized documents. A notary public, especially a
24
lawyer, is bound to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the
residence certificate upon notarization of a document or instrument:

On the issue of whether respondent was under the legal obligation to

furnish a copy of the notarized will to the archives division, Article
806 provides:

Respondents failure, inadvertent or not, to file in the archives

division a copy of the notarized will was therefore not a cause for
disciplinary action.
Nevertheless, respondent should be faulted for having failed to make
the necessary entries pertaining to the will in his notarial register.
The old Notarial Law required the entry of the following matters in
the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or
acknowledged before him;
2. person executing, swearing to, or acknowledging the
instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the
instrument;
5. fees collected by him for his services as notary;

Section 251. Requirement as to notation of payment of

[cedula] residence tax. Every contract, deed, or other
document acknowledged before a notary public shall have
certified thereon that the parties thereto have presented
their proper [cedula] residence certificate or are exempt
from the [cedula] residence tax, and there shall be entered
by the notary public as a part of such certificate the
number, place of issue, and date of each [cedula] residence
25
certificate as aforesaid.
The importance of such act was further reiterated by Section 6 of the
26
Residence Tax Act which stated:
When a person liable to the taxes prescribed in this Act
acknowledges any document before a notary public xxx it
shall be the duty of such person xxx with whom such
transaction is had or business done, to require the
exhibition of the residence certificate showing payment of
the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish
the true and correct identity of the person to whom it is issued, as
well as the payment of residence taxes for the current year. By
having allowed decedent to exhibit an expired residence certificate,

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the
27
substance of the instrument.
In an effort to prove that he had complied with the abovementioned
rule, respondent contended that he had crossed out a prior entry and
entered instead the will of the decedent. As proof, he presented a
photocopy of his notarial register. To reinforce his claim, he
28
presented a photocopy of a certification stating that the archives
division had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless
it is shown that the original is unavailable. The proponent must first
prove the existence and cause of the unavailability of the
29
original, otherwise, the evidence presented will not be admitted.
Thus, the photocopy of respondents notarial register was not
admissible as evidence of the entry of the execution of the will
because it failed to comply with the requirements for the
admissibility of secondary evidence.

18

In the same vein, respondents attempt to controvert the

30
certification dated September 21, 1999 must fail. Not only did he
present a mere photocopy of the certification dated March 15,
31
2000; its contents did not squarely prove the fact of entry of the
contested will in his notarial register.
32

Notaries public must observe with utmost care and utmost fidelity
the basic requirements in the performance of their duties, otherwise,
the confidence of the public in the integrity of notarized deeds will be
33
undermined.
Defects in the observance of the solemnities prescribed by law
render the entire will invalid. This carelessness cannot be taken
lightly in view of the importance and delicate nature of a will,
considering that the testator and the witnesses, as in this case, are no
longer alive to identify the instrument and to confirm its
34
contents. Accordingly, respondent must be held accountable for his
acts. The validity of the will was seriously compromised as a
35
consequence of his breach of duty.
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following
derelictions of duty on the part of a notary public shall, in
the discretion of the proper judge of first instance, be
sufficient ground for the revocation of his commission:
xxx

xxx

xxx

(b) The failure of the notary to make the proper entry or

entries in his notarial register touching his notarial acts in
the manner required by law.
xxx

xxx

xxx

(f) The failure of the notary to make the proper notation

36
regarding cedula certificates.
These gross violations of the law also made respondent liable for
violation of his oath as a lawyer and constituted transgressions of
37
38
Section 20 (a), Rule 138 of the Rules of Court and Canon 1 and
39
Rule 1.01 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to
the Republic of the Philippines, uphold the Constitution and obey the
40
laws of the land. For a lawyer is the servant of the law and belongs
to a profession to which society has entrusted the administration of
41
law and the dispensation of justice.
While the duty to uphold the Constitution and obey the law is an
obligation imposed on every citizen, a lawyer assumes responsibilities
well beyond the basic requirements of good citizenship. As a servant
of the law, a lawyer should moreover make himself an example for
42
others to emulate. Being a lawyer, he is supposed to be a model in
43
the community in so far as respect for the law is concerned.
44

The practice of law is a privilege burdened with conditions. A

breach of these conditions justifies disciplinary action against the
erring lawyer. A disciplinary sanction is imposed on a lawyer upon a
finding or acknowledgment that he has engaged in professional

45

misconduct. These sanctions meted out to errant lawyers include

disbarment, suspension and reprimand.
46

Disbarment is the most severe form of disciplinary sanction. We

have held in a number of cases that the power to disbar must be
47
exercised with great caution and should not be decreed if any
punishment less severe such as reprimand, suspension, or fine
48
will accomplish the end desired. The rule then is that disbarment is
meted out only in clear cases of misconduct that seriously affect the
49
standing and character of the lawyer as an officer of the court.
Respondent, as notary public, evidently failed in the performance of
the elementary duties of his office. Contrary to his claims that he
"exercised his duties as Notary Public with due care and with due
regard to the provision of existing law and had complied with the
elementary formalities in the performance of his duties xxx," we find
that he acted very irresponsibly in notarizing the will in question.
Such recklessness warrants the less severe punishment of suspension
from the practice of law. It is, as well, a sufficient basis for the
50
revocation of his commission and his perpetual disqualification to
51
be commissioned as a notary public.
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found
guilty of professional misconduct. He violated (1) the Lawyers Oath;
(2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the
Code of Professional Responsibility; (4) Art. 806 of the Civil Code and
(5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of
law for one year and his notarial commission REVOKED. Because he
has not lived up to the trustworthiness expected of him as a notary
public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary
public.
Let copies of this Resolution be furnished to all the courts of the land,
the Integrated Bar of the Philippines and the Office of the Bar
Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.
ORTEGA V. VALMONTE
December 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests
the burden of showing why it should not be allowed. In the present
case, petitioner has failed to discharge this burden satisfactorily. For
this reason, the Court cannot attribute any reversible error on the
part of the appellate tribunal that allowed the probate of the will.

19

The Case
I, PLACIDO VALMONTE, of legal age, married to Josefina
Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati,
Metro Manila, 83 years of age and being of sound and disposing mind
and memory, do hereby declare this to be my last will and testament:

[1]

Before the Court is a Petition for Review under Rule 45 of

the Rules of Court, seeking to reverse and set aside the December 12,
[2]
[3]
2002 Decision and the March 7, 2003 Resolution of the Court of
Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed
as follows:
WHEREFORE, the appeal is GRANTED,
and
the
Decision
appealed
from
is REVERSED and SET ASIDE. In its place judgment
is rendered approving and allowing probate to
the said last will and testament of Placido
Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the
court a quo for further and concomitant
[4]
proceedings.

1. It is my will that I be buried in the Catholic Cemetery,

under the auspices of the Catholic Church in accordance with the
rites and said Church and that a suitable monument to be erected
and provided my by executrix (wife) to perpetuate my memory in the
minds of my family and friends;
2. I give, devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half (1/2) portion of the followdescribed properties, which belongs to me as [co-owner]:
a.

The assailed Resolution denied petitioners Motion for

Reconsideration.

Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated

in Makati, Metro Manila, described and covered by TCT No. 123468
of the Register of Deeds of Pasig, Metro-Manila registered jointly as
co-owners with my deceased sister (Ciriaca Valmonte), having share
and share alike;
b.

The Facts
The facts were summarized in the assailed Decision of the
CA, as follows:
x x x: Like so many others before him,
Placido toiled and lived for a long time in the
United States until he finally reached retirement.
In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot
located at #9200 Catmon St., San Antonio Village,
Makati, which he owned in common with his
sister Ciriaca Valmonte and titled in their names
in TCT 123468. Two years after his arrival from
the United States and at the age of 80 he wed
Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio,
Jr. on February 5, 1982. But in a little more than
two years of wedded bliss, Placido died on
October 8, 1984 of a cause written down as COR
PULMONALE.
Placido executed a notarial last will and
testament written in English and consisting of
two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first
page contains the entire testamentary
dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page
by the testator and on the left hand margin by
the three instrumental witnesses. The second
page contains the continuation of the attestation
clause and the acknowledgment, and was signed
by the witnesses at the end of the attestation
clause and again on the left hand margin. It
provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN
THE NAME OF THE LORD AMEN:

2-storey building standing on the above-described property,

made of strong and mixed materials used as my residence and
my wife and located at No. 9200 Catmon Street, Makati, Metro
Manila also covered by Tax Declaration No. A-025-00482,
Makati, Metro-Manila, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share alike
or equal co-owners thereof;
3. All the rest, residue and remainder of my real
and personal properties, including my savings account bank
book in USA which is in the possession of my nephew, and all
others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole

executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this
th
15 day of June 1983 in Quezon City, Philippines.

The allowance to probate of this will was opposed by

Leticia on the grounds that:
1.

Petitioner failed to allege all assets of the testator,

especially those found in the USA;

2.

Petitioner failed to state the names, ages, and

residences of the heirs of the testator; or to give them proper notice
pursuant to law;
3.

Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;

4.

Testator was mentally incapable to make a will at the time of

the alleged execution he being in an advance sate of senility;

5.

Will was executed under duress, or the influence of fear or

threats;

20

6.

7.

Will was procured by undue and improper influence and

pressure on the part of the petitioner and/or her agents and/or
assistants; and/or

The attesting witnesses to the will corroborated the

testimony of the notary public, and testified that the testator went
alone to the house of spouses Eugenio and Feliza Gomez at GSIS
Village, Quezon City and requested them to accompany him to the
house of Atty. Floro Sarmiento purposely for his intended will; that
after giving his instructions to Atty. Floro Sarmiento, they were told
to return on June 15, 1983; that they returned on June 15, 1983 for
the execution of the will but were asked to come back instead on
August 9, 1983 because of the absence of the notary public; that the
testator executed the will in question in their presence while he was
of sound and disposing mind and that he was strong and in good
health; that the contents of the will was explained by the notary
public in the Ilocano and Tagalog dialect and that all of them as
witnesses attested and signed the will in the presence of the testator
and of each other. And that during the execution, the testators wife,
Josefina was not with them.

Signature of testator was procured by fraud, or trick, and he did

not intend that the instrument should be his will at the time of
affixing his signature thereto; and she also opposed the
appointment as Executrix of Josefina alleging her want of
understanding and integrity.

At the hearing, the petitioner Josefina testified and called

as witnesses the notary public Atty. Floro Sarmiento who prepared
and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane Ortega
testified.
According to Josefina after her marriage with the testator
they lived in her parents house at Salingcob, Bacnotan, La Union but
they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were times
though when to shave off on expenses, the testator would travel
alone. And it was in one of his travels by his lonesome self when the
notarial will was made. The will was witnessed by the spouses
Eugenio and Feliza Gomez, who were their wedding sponsors, and by
Josie Collado. Josefina said she had no knowledge of the existence of
the last will and testament of her husband, but just serendipitously
found it in his attache case after his death. It was only then that she
learned that the testator bequeathed to her his properties and she
was named the executrix in the said will. To her estimate, the value
of property both real and personal left by the testator is worth more
or less P100,000.00. Josefina declared too that the testator never
suffered mental infirmity because despite his old age he went alone
to the market which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if she could not
accompany him, even traveled to Manila alone to claim his monthly
pension. Josefina also asserts that her husband was in good health
and that he was hospitalized only because of a cold but which
eventually resulted in his death.
Notary Public Floro Sarmiento, the notary public who
notarized the testators will, testified that it was in the first week of
June 1983 when the testator together with the three witnesses of
the will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed him
on the terms and dispositions he wanted on the will, the notary
public told them to come back on June 15, 1983 to give him time to
prepare it. After he had prepared the will the notary public kept it
safely hidden and locked in his drawer. The testator and his witnesses
returned on the appointed date but the notary public was out of
town so they were instructed by his wife to come back on August 9,
1983, and which they did. Before the testator and his witnesses
signed the prepared will, the notary public explained to them each
and every term thereof in Ilocano, a dialect which the testator spoke
and understood. He likewise explained that though it appears that
the will was signed by the testator and his witnesses on June 15,
1983, the day when it should have been executed had he not gone
out of town, the formal execution was actually on August 9, 1983. He
reasoned that he no longer changed the typewritten date of June 15,
1983 because he did not like the document to appear dirty. The
notary public also testified that to his observation the testator was
physically and mentally capable at the time he affixed his signature
on the will.

The oppositor Leticia declared that Josefina should not

inherit alone because aside from her there are other children from
the siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that at the
time of the execution of the notarial will the testator was already 83
years old and was no longer of sound mind. She knew whereof she
spoke because in 1983 Placido lived in the Makati residence and
asked Leticias family to live with him and they took care of him.
During that time, the testators physical and mental condition showed
deterioration, aberrations and senility. This was corroborated by her
daughter Mary Jane Ortega for whom Placido took a fancy and
wanted to marry.
Sifting through the evidence, the court a quo held that [t]he
evidence adduced, reduces the opposition to two grounds, namely:
1.

Non-compliance with the legal solemnities and formalities in the

execution and attestation of the will; and

2.

Mental incapacity of the testator at the time of the execution of the

will as he was then in an advanced state of senility
It then found these grounds extant and proven, and accordingly
[5]
disallowed probate.

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of
Placido Valmonte to probate. The CA upheld the credibility of the
notary public and the subscribing witnesses who had acknowledged
the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It
added that his sexual exhibitionism and unhygienic, crude and
[6]
impolite ways did not make him a person of unsound mind.
[7]

Hence, this Petition.

Issues
Petitioner raises the following issues for our consideration:
I.
Whether or not the findings of the probate court
are entitled to great respect.

21

II.
Whether or not the signature of Placido
Valmonte in the subject will was procured by
fraud or trickery, and that Placido Valmonte
never intended that the instrument should be his
last will and testament.
III.
Whether or not Placido Valmonte has
testamentary capacity at the time he allegedly
[8]
executed the subject will.

In short, petitioner assails the CAs allowance of the probate

of the will of Placido Valmonte.
This Courts Ruling
The Petition has no merit.

Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be
raised in a Petition for Review under Section 1 of Rule 45 of the Rules
of Court. As an exception, however, the evidence presented during
the trial may be examined and the factual matters resolved by this
Court when, as in the instant case, the findings of fact of the
[9]
appellate court differ from those of the trial court.
The fact that public policy favors the probate of a will does
not necessarily mean that every will presented for probate should be
allowed. The law lays down the procedures and requisites that must
[10]
be satisfied for the probate of a will. Verily, Article 839 of the Civil
Code states the instances when a will may be disallowed, as follows:
Article 839. The will shall be disallowed
in any of the following cases:
(1)
If the formalities required by
law have not been complied with;
(2)
If the testator was insane, or
otherwise mentally incapable of making a will, at
the time of its execution;
(3)
If it was executed through force
or under duress, or the influence of fear, or
threats;
(4)
If it was procured by undue and
improper pressure and influence, on the part of
the beneficiary or of some other person;
(5)
If the signature of the testator
was procured by fraud;
(6)
If the testator acted by mistake
or did not intend that the instrument he signed

should be his will at the time of affixing his

signature thereto.
In the present case, petitioner assails the validity of Placido
Valmontes will by imputing fraud in its execution and challenging the
testators state of mind at the time.

Existence of Fraud in the

Execution of a Will
Petitioner does not dispute the due observance of the formalities in
the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of
the will.
Petitioner contends that it was highly dubious for a woman
at the prime of her young life [to] almost immediately plunge into
marriage with a man who [was] thrice her age x x x and who
[11]
happened to be [a] Fil-American pensionado, thus casting doubt
on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly defies human reason, logic and common
[12]
experience for an old man with a severe psychological condition to
have willingly signed a last will and testament.
We are not convinced. Fraud is a trick, secret device, false statement,
or pretense, by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the nature or
contents of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception regarding which
the testator is led to make a certain will which, but for the fraud, he
[13]
would not have made.
We stress that the party challenging the will bears the
burden of proving the existence of fraud at the time of its
[14]
execution. The burden to show otherwise shifts to the proponent
of the will only upon a showing of credible evidence of
[15]
fraud. Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives
[16]
does not affect the due execution of a will. That the testator was
tricked into signing it was not sufficiently established by the fact that he
had instituted his wife, who was more than fifty years his junior, as the
sole beneficiary; and disregarded petitioner and her family, who
were the ones who had taken the cudgels of taking care of [the
[17]
testator] in his twilight years.
Moreover, as correctly ruled by the appellate court, the
conflict between the dates appearing on the will does not invalidate
the document, because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the same
[18]
occasion. More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who must
also attest to it in the presence of the testator and of one
[19]
another. Furthermore, the testator and the witnesses must
[20]
acknowledge the will before a notary public. In any event, we
agree with the CA that the variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and

22

persuasively explained by the notary public and the instrumental

[21]
witnesses.
The pertinent transcript of stenographic notes taken on
June 11, 1985, November 25, 1985, October 13, 1986, and October
21, 1987 -- as quoted by the CA -- are reproduced respectively as
follows:
Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying
the date June 15 when the testator and
his witnesses were supposed to be in
your office?
A Yes sir.
Q On June 15, 1983, did the testator and his
witnesses come to your house?
A They did as of agreement but unfortunately, I
was out of town.
xxxxxxxxx
Q The document has been acknowledged on
August
9,
1983
as
per
acknowledgement appearing therein.
Was this the actual date when the
document was acknowledged?
A Yes sir.
Q What about the date when the testator and
the three witnesses affixed their
respective signature on the first and
second pages of exhibit C?
A On that particular date when it was
acknowledged, August 9, 1983.
Q Why did you not make the necessary
correction on the date appearing on
the body of the document as well as
the attestation clause?
A Because I do not like anymore to make some
alterations so I put it in my own
handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985,
pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it
is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9,
1983, will you look at this document
and tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with
Placido Valmonte and the two
witnesses; that was first week of June
and Atty. Sarmiento told us to return
th
on the 15 of June but when we
returned, Atty. Sarmiento was not
there.

Q When you did not find Atty. Sarmiento on June

15, 1983, did you again go back?
th
A We returned on the 9 of August and there we
signed.
Q This August 9, 1983 where you said it is there
where you signed, who were your
companions?
A The two witnesses, me and Placido Valmonte.
(tsn, November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty.
Floro Sarmiento, three times?
xxxxxxxxx
A The reason why we went there three times is that, the first
week of June was out first time. We went there to
talk to Atty. Sarmiento and Placido Valmonte
about the last will and testament. After that what
they have talked what will be placed in the
testament, what Atty. Sarmiento said was that he
th
will go back on the 15 of June. When we
returned on June 15, Atty. Sarmiento was not
there so we were not able to sign it, the will. That
is why, for the third time we went there on August
9 and that was the time we affixed our signature.
(tsn, October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his
house on June 15, 1983, what
transpired?
A The wife of Atty. Sarmiento told us that we will
be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the
house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
[22]
A Yes sir. (tsn, October 21, 1987, pp. 4-5)
Notably, petitioner failed to substantiate her claim of a
grand conspiracy in the commission of a fraud. There was no showing
that the witnesses of the proponent stood to receive any benefit
from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its due
[23]
execution. Their testimony favoring it and the finding that it was
executed in accordance with the formalities required by law should
[24]
be affirmed,absent any showing of ill motives.

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil
Code gives the following guidelines:

23

Article 798. In order to make a will it is

essential that the testator be of sound mind at
the time of its execution.
Article 799. To be of sound mind, it is
not necessary that the testator be in full
possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or
shattered by disease, injury or other cause.
It shall be sufficient if the testator was
able at the time of making the will to know the
nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the
testamentary act.
Article 800. The law presumes that
every person is of sound mind, in the absence of
proof to the contrary.
The burden of proof that the testator
was not of sound mind at the time of making his
dispositions is on the person who opposes the
probate of the will; but if the testator, one
month, or less, before making his will was
publicly known to be insane, the person who
maintains the validity of the will must prove that
the testator made it during a lucid interval.

According to Article 799, the three things that the testator

must have the ability to know to be considered of sound mind are as
follows: (1) the nature of the estate to be disposed of, (2) the proper
objects of the testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that
the appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still
able to identify accurately the kinds of property he owned, the extent
of his shares in them and even their locations. As regards the proper
objects of his bounty, it was sufficient that he identified his wife as
sole beneficiary. As we have stated earlier, the omission of some
relatives from the will did not affect its formal validity. There being
no showing of fraud in its execution, intent in its disposition becomes
irrelevant.
Worth reiterating in determining soundness of mind
[25]
is Alsua-Betts v. CA, which held thus:
"Between the highest degree of
soundness of mind and memory which
unquestionably carries with it full testamentary
capacity, and that degrees of mental aberration
generally known as insanity or idiocy, there are
numberless degrees of mental capacity or
incapacity and while on one hand it has been
held that mere weakness of mind, or partial
imbecility from disease of body, or from age, will
not render a person incapable of making a will; a
weak or feebleminded person may make a valid
will, provided he has understanding and memory
sufficient to enable him to know what he is about
to do and how or to whom he is disposing of his

property. To constitute a sound and disposing

mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by
disease or otherwise. It has been held that
testamentary incapacity does not necessarily
require that a person shall actually be insane or
[26]
of unsound mind."

WHEREFORE, the Petition is DENIED, and the assailed

Decision and Resolution of the Court of Appeals are AFFIRMED. Costs
against petitioner.

Guerrero vs BihisG.R. No. 174144 April 17, 2007Facts:

Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero
andrespondent Resurreccion A. Bihis, died. Guerrero filed for probate
in the RTCQC. Respondent Bihis opposed her elder sisters petition on
the following grounds: the will was not executed and attested as
required by law; itsattestation clause and acknowledgment did not
comply with the requirementsof the law; the signature of the
testatrix was procured by fraud and petitioner and her children
procured the will through undue and improper pressure
andinfluence. The trial court denied the probate of the will ruling that
Article 806 of the Civil Code was not complied with because the will
was acknowledged bythe testatrix and the witnesses at the
testatrixs residence at No. 40 Kanlaon
Street, Quezon City before Atty. Macario O. Directo who was a
commissionednotary public for and in Caloocan City.
ISSUE: Did the will acknowledged by the testatrix and t
he instrumental witnessesbefore a notary public acting outside the
place of his commission satisfy therequirement under Article 806 of
the Civil Code?
HELD: No. One of the formalities required by law in connection with
the execution of a notarial will is that it must be acknowledged
before a notary public by thetestator and the witnesses. This formal
requirement is one of theindispensable requisites for the validity of a
will. In other words, a notarial willthat is not acknowledged before a
notary public by the testator and theinstrumental witnesses is void
and cannot be accepted for probate.The Notarial law provides:
SECTION 240.Territorial jurisdiction.

The jurisdiction of a notary public in a province shall be coextensive with theprovince. The jurisdiction of a notary public in the
City of Manila shall be co-extensive with said city. No notary shall
possess authority to do any notarialact beyond the limits of his
jurisdiction.Sine Atty. Directo was not a commissioned notary public
for and in QuezonCity, he lacked the authority to take the
acknowledgment of the testratix andthe instrumental witnesses. In
the same vain, the testratix and theinstrumental witnesses could not
have validly acknowledged the will beforehim. Thus, Felisa Tamio de
Buenaventuras last will and testament was, in effect, not
acknowledged as required by law

24

June 27, 1994

CLEMENTE CALDE, petitioner, vs. THE COURT OF APPEALS, PRIMO
AGAWIN and DOMYAAN APED, respondents.

Q After Calibia Lingdan Bulanglang was made to sign I

withdraw the question. How did Calibia Lingdan Bulanglang
sign the last will and testament?

PUNO, J.:

A She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb
to her name.

This is a petition for review by certiorari of the Decision, dated March

1
27, 1990, of the Court of appeals in CA-G.R. CV No. 19071,
disallowing probate of the Last Will and Codicil executed by Calibia
Lingdan Bulanglang, who died on March 20, 1976.

Q After she signed, who was the second to sign allegedly all of
you there present?
A Jose Becyagen.

The records show that decedent left behind nine thousand pesos
(P9,000.00) worth of property. She also left a Last Will and
Testament, dated October 30, 1972, and a Codicil thereto, dated July
24, 1973. Both documents contained the thumbmarks of decedent.
They were also signed by three (3) attesting witnesses each, and
acknowledged before Tomas A. Tolete, then the Municipal Judge and
Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its
2
allowance before the RTC of Bontoc, Mt. Province, Br. 36. He died
during the pendency of the proceedings, and was duly substituted by
petitioner. Private respondents, relatives of decedent, opposed the
Petitioner filed by Calde, on the following grounds: that the will and
codicil were written in Ilocano, a dialect that decedent did not know;
that decedent was mentally incapacitated to execute the two
documents because of her advanced age, illness and deafness; that
decedents thumbmarks were procured through fraud and undue
influence; and that the codicil was not executed in accordance with
law.
On June 23, 1988, the trial court rendered judgment on the case,
approving and allowing decedents will and its codicil. The decision
was appealed to and reversed by the respondent Court of Appeals. It
held:
. . . (T)he will and codicil could pass the safeguards under
Article 805 of the New Civil Code but for one crucial factor
of discrepancy in the color of ink when the instrumental
witnesses affixed their respective signatures. When
subjected to cross-examination, Codcodio Nacnas as
witness testified as follows:

Q With what did Jose Becyagen sign the testament, Exhibit

"B" and "B-1"?
A Ballpen.
Q And after Jose Becyagen signed his name with the ballpen,
who was the next to sign?
A Me, sir.
Q And Jose Becyagen passed you the paper and the ballpen,
Exhibit "B" and "B-1" plus the ballpen which used to sign so
that you could sign your name, is that correct?
A Yes, sir.
Q And then after you signed, who was the next to sign the
document, Exhibit "B" and "B-1"?
A Hilario Coto-ong.
Q So you passed also to Hilario Coto-ong the same Exhibit "B"
and "B-1" and the ballpen so that he could sign his name as
witness to the document, is it not?
A Yes, sir.
Q And that is the truth and you swear that to be the truth
before the Honorable Court?

Q And all of you signed on the same table?

ATTY. DALOG:
A Yes, sir.
He already testified under oath, Your Honor.
Q And when you were all signing this Exhibit "B" and "B1", Exhibit "B" and "B-1" which is the testament was
passed around all of you so that each of you will sign
consecutively?
A Yes, sir.
Q Who was the first to sign?
A Calibia Lingdan Bulanglang.

COURT:
Witness may answer
A Yes, sir.
For his part, Obanan Ticangan likewise admitted during crossexamination in regard to the codicil that:

25

Q When you signed Exhibit "D" and "D-1", did you all sign with
the same ballpen?
A One.
Such admissions from instrumental witnesses are indeed
significant since they point to no other conclusion than that the
documents were not signed by them in their presence but on
different occasions since the same ballpen used by them
supposedly in succession could not have produced a different
color from blue to black and from black to blue. In fact, the
attestation clause followed the same pattern. The absurd
sequence was repeated when they signed the codicil, for which
reason, We have no other alternative but to disallow the Last
Will and Codicil. Verily, if the witnesses and testatrix used the
same ballpen, then their signatures would have been in only one
color, not in various ones as shown in the documents.
Moreover, the signatures, in different colors as they are, appear
to be of different broadness, some being finer than the others,
indicating that, contrary to what the testamentary witnesses
declared on the witness stand, not only one ballpen was used,
and, therefore, showing that the documents were not signed by
the testatrix and instrumental witnesses in the presence of one
another. . . " (Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the impugned
Decision. His motion was denied by the respondent court in its Order,
dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the correctness
of the respondent courts conclusion that both decedents will and
codicil were not subscribed by the witnesses in the presence of the
testator and of one another, contrary to the requirements of Article
805 of the Civil Code. He contends that:
1. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW
OR WITH THE APPLICABLE DECISION OF THE SUPREME COURT
BY CONCLUDING BASED ON PURE SPECULATION OR SURMISES
AND WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE
WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND
THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG
WERE SIGNED BY HER AND BY HER INSTRUMENTAL WITNESSES
ON DIFFERENT OCCASIONS;
2. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW
OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT
BY DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION
CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL
OF THE LATE CALIBIA LINGDAN BULANGLANG.
The petition must fail.
The question in the case at bench is one of fact: whether or not,
based on the evidence submitted, respondent appellate court erred
in concluding that both decedents Last Will and Testament, and its
Codicil were subscribed by the instrumental witnesses on separate
occasions. As a general rule, factual findings of the Court of Appeals
are considered final and conclusive, and cannot be reviewed on
appeal to this court. In the present instance, however, there is reason

to make an exception to that rule, since the finding of the respondent

court is contrary to that of the trial court, viz.:
. . . (Private respondents) pointed out however, that the
assertions of petitioners witnesses are rife with contradictions,
particularly the fact that the latters signatures on the
documents in issue appear to have been written in ballpens of
different colors contrary to the statements of said witnesses
that all of them signed with only one ballpen. The implication is
that the subscribing witnesses to the Will and Codicil, and the
testatrix did not simultaneously sign each of the documents in
one sitting but did it piecemeal a violation of Art. 805 of the
Code. This conclusion of the (private respondents) is purely
circumstantial. From this particular set of facts, numerous
inferences without limits can be drawn depending on which side
of the fence one is on. For instance, considering the time
interval that elapsed between the making of the Will and Codicil,
and up to the filing of the petition for probate, the possibility is
not remote that one or two of the attesting witnesses may have
forgotten certain details that transpired when they attested the
documents in question . . . (Rollo, pp. 36-37.)
A review of the facts and circumstances upon which respondent
Court of Appeals based its impugned finding, however, fails to
convince us that the testamentary documents in question were
subscribed and attested by the instrumental witnesses during a single
occasion.
As sharply noted by respondent appellate court, the signatures of
some attesting witnesses in decedents will and its codicil were
written in blue ink, while the others were in black. This discrepancy
was not explained by petitioner. Nobody of his six (6) witnesses
testified that two pens were used by the signatories on the two
documents. In fact, two (2) of petitioners witnesses even testified
that only one (1) ballpen was used in signing the two testamentary
documents.
It is accepted that there are three sources from which a tribunal may
properly acquire knowledge for making its decisions, namely:
circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains these sources as follows:
If, for example, it is desired to ascertain whether the accused
has lost his right hand and wears an iron hook in place of it, one
source of belief on the subject would be the testimony of a
witness who had seen the arm; in believing this testimonial
evidence, there is an inference from the human assertion to the
fact asserted. A second source of belief would be the mark left
on some substance grasped or carried by the accused; in
believing this circumstantial evidence, there is an inference from
the circumstance to the thing producing it. A third source of
belief remains, namely, the inspection by the tribunal of the
accuseds arm. This source differs from the other two in
omitting any step of conscious inference or reasoning, and in
proceeding by direct self-perception, or autopsy.
It is unnecessary, for present purposes, to ask whether this is
not, after all, a third source of inference, i.e., an inference from
the impressions or perceptions of the tribunal to the objective
existence of the thing perceived. The law does not need and
does not attempt to consider theories of psychology as to the

26

subjectivity of knowledge or the mediateness of perception. It

assumes the objectivity of external nature; and, for the purposes
of judicial investigation, a thing perceived by the tribunal as
existing does exist.
There are indeed genuine cases of inference by the tribunal
from things perceived to other things unperceived as, for
example, from a persons size, complexion, and features, to his
age; these cases of a real use of inference can be later more
fully distinguished . . . But we are here concerned with nothing
more than matters directly perceived for example, that a
person is of small height or is of dark complexion; as to such
matters, the perception by the tribunal that the person is small
or large, or that he has a dark or light complexion, is a mode of
acquiring belief which is independent of inference from either
testimonial or circumstantial evidence. It is the tribunals selfperception, or autopsy, of the thing itself.
From the point of view of the litigant party furnishing this source
3
of belief, it may be termed Autoptic Proference. (Citations
omitted.)
In the case at bench, the autoptic proference contradicts the
testimonial evidence produced by petitioner. The will and its codicil,
upon inspection by the respondent court, show in black and white
or more accurately, in black and blue that more than one pen was
used by the signatories thereto. Thus, it was not erroneous nor
baseless for respondent court to disbelieve petitioners claim that
both testamentary documents in question were subscribed to in
accordance with the provisions of Art. 805 of the Civil Code.
Neither did respondent court err when it did not accord great weight
to the testimony of Judge Tomas A. Tolete. It is true that his
testimony contains a narration of how the two testamentary
documents were subscribed and attested to, starting from
decedents thumbmarking thereof, to the alleged signing of the
instrumental witnesses thereto in consecutive order. Nonetheless,
nowhere in Judge Toletes testimony is there any kind of explanation
for the different-colored signatures on the testaments.
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The
Decision of respondent Court of Appeals, dated March 27, 1988, in
CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and
the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is
AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.

Before us is an appeal from the Decision dated 11 April 1986 of the

First Civil Cases Division of the then Intermediate Appellate Court,
now Court of Appeals, which affirmed the Order dated 27 June
2
1983 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
3
4
probate the last will and testament with codicil 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
5
Siniloan, Laguna. Petitioner, 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.

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.
BELLOSILLO, J.:

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

27

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
6
of Opthalmology (Philippine Eye Research Institute), the contents of
which were interpreted in layman's terms by Dr. Ruperto Roasa,
7
whose expertise was admitted by private respondent. Dr. Roasa
explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten
8
matters as of 14 December 1977, the day of his first consultation.
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
9
"poor eyesight." Since the testator was still capable of reading at
that time, the court a quo concluded that Art. 808 need not be
complied with.

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
14
inflexible as to destroy the testamentary privilege.

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
10
11
Brigido did not do so because of his "poor," "defective," or
12
"blurred" vision making it necessary for private respondent to do
the actual reading for him.
13

The following pronouncement in Garcia vs. Vasquez provides an

insight into the scope of the term "blindness" as used in Art. 808, to
wit:

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

28

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
15
conformity to the draft.
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
16
affirmative. 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
17
defeat the testator's will.
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
18
quote the following pronouncement in Abangan v. Abangan, 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.

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.
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

29

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.

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 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.

... 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

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.

... 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

30

objective or purpose sought to be accomplished by such requisite is

actually attained by the form followed by the testator.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

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.
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.

BELLOSILLO, J.:
1

Before us is an appeal from the Decision dated 11 April 1986 of the

First Civil Cases Division of the then Intermediate Appellate Court,
now Court of Appeals, which affirmed the Order dated 27 June
2
1983 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
3
4
probate the last will and testament with codicil 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
5
Siniloan, Laguna. Petitioner, 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

31

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
6
of Opthalmology (Philippine Eye Research Institute), the contents of
which were interpreted in layman's terms by Dr. Ruperto Roasa,
7
whose expertise was admitted by private respondent. Dr. Roasa
explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten
8
matters as of 14 December 1977, the day of his first consultation.
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
9
"poor eyesight." 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
10
11
Brigido did not do so because of his "poor," "defective," or
12
"blurred" vision making it necessary for private respondent to do
the actual reading for him.
13

The following pronouncement in Garcia vs. Vasquez 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
14
inflexible as to destroy the testamentary privilege.

32

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
15
conformity to the draft.
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
16
affirmative. 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
17
defeat the testator's will.
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
18
quote the following pronouncement in Abangan v. Abangan, 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.
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
1
COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J.:
The sole issue in this case is whether or not the alleged holographic
will of one Melecio Labrador is dated, as provided for in Article
2
810 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P1652, and the following heirs, namely: Sagrado, Enrica, Cristobal,
Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted
by his heirs), Enrica Labrador and Cristobal Labrador, filed in the
court a quo a petition for the probate docketed as Special Proceeding
No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now
deceased but substituted by his heirs), and Gaudencio Labrador filed
an opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that
on September 30, 1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying
in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a
matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-

33

21178. Earlier however, in 1973, Jesus Labrador sold said parcel of

land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his
brothers, Gaudencio and Jesus, for the annulment of said purported
Deed of Absolute Sale over a parcel of land which Sagrado allegedly
had already acquired by devise from their father Melecio Labrador
under a holographic will executed on March 17, 1968, the complaint
for annulment docketed as Civil Case No. 934-I, being premised on
the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective
evidence, the trial court rendered a joint decision dated February 28,
1985, allowing the probate of the holographic will and declaring null
and void the Deed of Absolute sale. The court a quo had also directed
the respondents (the defendants in Civil Case No. 934-I) to reimburse
to the petitioners the sum of P5,000.00 representing the redemption
price for the property paid by the plaintiff-petitioner Sagrado with
legal interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of Appeals,
which on March 10, 1988 modified said joint decision of the court a
quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners'
Motion for Reconsideration of the aforesaid decision was denied by
the Court of Appeals, in the resolution of June 13, 1988. Hence, this
petition.
Petitioners now assign the following errors committed by respondent
court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF
THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE
ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated
into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place
as Tagale.

And this place that is given as the share to him, there is a

measurement of more or less one hectare, and the
boundary at the South is the property and assignment
share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is,
and the boundary on the NORTH is assignment belonging
to CRISTOBAL LABRADOR, who likewise is also their
brother. That because it is now the time for me being now
ninety three (93) years, then I feel it is the right time for me
to partition the fishponds which were and had been bought
or acquired by us, meaning with their two mothers, hence
there shall be no differences among themselves, those
among brothers and sisters, for it is I myself their father
who am making the apportionment and delivering to each
and everyone of them the said portion and assignment so
that there shall not be any cause of troubles or differences
among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making
the partitioning and assigning the respective assignment of
the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the
one who made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making in writing
and it is this that should be followed and complied with in
order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my
children, and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other
kind of bamboo by name of Bayog, it is their right to get if
they so need, in order that there shall be nothing that
anyone of them shall complain against the other, and
against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where
the said property is located, the same being the fruits of
our earnings of the two mothers of my children, there shall
be equal portion of each share among themselves, and or
to be benefitted with all those property, which property we
have been able to acquire.
That in order that there shall be basis of the truth of this
writing (WILL) which I am here hereof manifesting of the
truth and of the fruits of our labor which their two
mothers, I am signing my signature below hereof, and that
this is what should be complied with, by all the brothers
and sisters, the children of their two mothers JULIANA
QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA
Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

34

The petition, which principally alleges that the holographic will is

really dated, although the date is not in its usual place, is impressed
with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1wphi1 It is worthy of note to quote the
first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making
the partitioning and assigning the respective assignment of
the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the
one who made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should
be placed in the will. The only requirements are that the date be in
the will itself and executed in the hand of the testator. These
requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when
the testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution
of the holographic will; hence, the will is more of an "agreement"
between the testator and the beneficiaries thereof to the prejudice
of other compulsory heirs like the respondents. This was thus a
failure to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to
take effect after his death."

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:

Respondents are in error. The intention to show 17 March 1968 as

the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio
Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.

(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;

Anent the second issue of finding the reimbursement of the P5,000

representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately
regain possession of the property for its disposition in accordance
with the will. Petitioners therefore deserve to be reimbursed the
P5,000.

(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

PREMISES CONSIDERED, the decision of the Court of Appeals dated

March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private
respondents are directed to REIMBURSE the petitioners the sum of
Five Thousand Pesos (P5,000.00). SO ORDERED.

(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

(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

35

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.

[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
[1]
the Court of Appeals 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

36

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
[2]
Matilde Seo Vda. de Ramonal.
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
[3]
Court, Misamis Oriental, Branch 18, a petition 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
[4]
death.
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
[5]
Ramonal filed an opposition 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
[6]
evidence, filed a demurrer 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
[7]
for insufficiency of evidence and lack of merits.

On December 12, 1990, respondents filed a notice of

[8]
appeal, 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.

37

The holographic will which was written in Visayan, is translated

in English as follows:

Mama
Matilde Vda de Ramonal

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.

On October 9, 1995, the Court of Appeals, rendered

[9]
decision 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

38

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
[10]
testimony of the lay witnesses.
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.

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[12]
Gomez streets.

The petitioners raise the following issues:

xxx

(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.

Q. Who sometime accompany her?

(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.

Q. In collecting rentals does she issue receipts?

(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
[11]
used in a statute is mandatory.
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

A. I sometimes accompany her

[13]

A. Yes, sir.

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?

39

A. Because we sometimes post a record of accounts in behalf of

Matilde Vda. De Ramonal.

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

Q. How is this record of accounts made? How is this reflected?

A. 1985.

A. In handwritten.

[17]

[14]

xxx
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?

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.

A. Posting records.

Q. After taking that document you kept it with you?

Q. Aside from that?

A. I presented it to the fiscal.

A. Carrying letters.

Q. For what purpose?

Q. Letters of whom?

A. Just to seek advice.

A. Matilde

Q. Advice of what?

Q. To whom?

A. About the will.

A. To her creditors.

[18]

[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.

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. Showing to you this exhibit S, there is that handwritten tugon,

whose handwriting is this?

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a

sickly person is that correct?

A. My aunt.

A. Yes, sir.

Q. Why do you say this is the handwriting of your aunt?

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. 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.

[19]

A. Yes, sir.

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.?
[20]

A. Yes, sir.

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

40

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. 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. 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. 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?
[25]

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. As far as I know they have no legitimate children.

xxx

Q. You said after becoming a lawyer you practice your

profession? Where?
A. Here in Cagayan de Oro City.

[21]

A. Yes, sir.

Evangeline Calugay declared that the holographic will was

written, dated and signed in the handwriting of the testator. She
testified that:

Q. Do you have services rendered with the deceased Matilde vda

de Ramonal?

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?

Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?

A. During my stay I used to go with her to the church, to the

market and then to her transactions.

A. I assisted her in terminating the partition, of properties.

A. It is about the project partition to terminate the property,

[26]
which was under the court before.
xxx

Q. What was your purpose of going to her lawyer?

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. I used to be her personal driver.

A. That is the signature of Matilde Vda de Ramonal.

Q. In the course of your stay for 22 years did you acquire

familiarity of the handwriting of Matilde Vda de Ramonal?

Q. Also in exhibit n-3, whose signature is this?

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.

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.

A. This one here that is the signature of Mrs. Matilde vda de

[27]
Ramonal.
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
[28]
can recall.

41

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
[29]
they are similar.
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?

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
[33]
30, 1978, and the signatures in several documents such as the
application letter for pasture permit dated December 30,
[34]
[35]
1980, and a letter dated June 16, 1978, 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.

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?
[30]

A. That is true.

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
[31]
Azaola vs. Singson, ruling that the requirement is merely directory
and not mandatory.

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.

[32]

In the case of Ajero vs. Court of Appeals, 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.

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:

42

My Last will and Testament

testatrix Natividad K. Kalaw, the Court will deny

the admission to probate of Exhibit "C".

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.

WHEREFORE, the petition to probate Exhibit "C"

as the holographic will of Natividad K. Kalaw is
hereby denied.
SO ORDERED.

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

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
2
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

43

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
3
ultimo del ao en que fue extendido (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.

instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I find
it peculiar that the testatrix who was obviously an educated person
would unthinkingly make such crude alterations instead of consulting
her lawyer and writing an entirely new holographic wig in order to
avoid any doubts as to her change of heir. It should be noted that the
first alteration crossing out "sister Rosa K. Kalaw" and inserting
"brother Gregorio Kalaw" as sole heir is not even initialed by the
testatrix. Only the second alteration crossing out "sister Rosa K.
Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for
Rosa as sole heir is properly denied, since the same was not duly
authenticated by the full signature of the executrix as mandatorily
required by Article 814 of the Civil Code. The original unaltered will
naming Rosa as sole heir cannot, however, be given effect in view of
the trial court's factual finding that the testatrix had by her own
handwriting substituted Gregorio for Rosa, so that there is no longer
any will naming Rosa as sole heir. The net result is that the testatrix
left no valid will and both Rosa and Gregorio as her next of kill
succeed to her intestate estate.
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
1
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision
of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon
2
City, Branch 94, in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of
the late Annie Sand, who died on November 25, 1982.

SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

In the will, decedent named as devisees, the following: petitioners

Roberto and Thelma Ajero, private respondent Clemente Sand,
Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the
time of its execution, she was of sound and disposing mind, not
acting under duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of
law, is bound by the trial court's factual finding that the peculiar
alterations in the holographic will crossing out Rosa's name and

Private respondent opposed the petition on the grounds that: neither

the testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan Del Norte.
He claimed that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.

44

Notwithstanding the oppositions, the trial court admitted the

decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings
herein must decide only the question of identity
of the will, its due execution and the
testamentary capacity of the testatrix, this
probate court finds no reason at all for the
disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack
of testamentary capacity of the testatrix.
For one, no evidence was presented to show that
the will in question is different from the will
actually executed by the testatrix. The only
objections raised by the oppositors . . . are that
the will was not written in the handwriting of the
testatrix which properly refers to the question of
its due execution, and not to the question of
identity of will. No other will was alleged to have
been executed by the testatrix other than the will
herein presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be accepted, i.e., the
will submitted in Court must be deemed to be
the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic
will in question was indeed written entirely,
dated and signed in the handwriting of the
testatrix. Three (3) witnesses who have
convincingly shown knowledge of the
handwriting of the testatrix have been presented
and have explicitly and categorically identified
the handwriting with which the holographic will
in question was written to be the genuine
handwriting and signature of the testatrix. Given
then the aforesaid evidence, the requirement of
the law that the holographic will be entirely
written, dated and signed in the handwriting of
the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity
of the testratix, (private respondent) Clemente
Sand himself has testified in Court that the
testatrix was completely in her sound mind when
he visited her during her birthday celebration in
1981, at or around which time the holographic
will in question was executed by the testatrix. To
be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the
proper object of her bounty, and thecharacter of
the testamentary act . . . The will itself shows that

the testatrix even had detailed knowledge of the

nature of her estate. She even identified the lot
number and square meters of the lots she had
conveyed by will. The objects of her bounty were
likewise identified explicitly. And considering that
she had even written a nursing book which
contained the law and jurisprudence on will and
succession, there is more than sufficient showing
that she knows the character of the testamentary
act.
In this wise, the question of identity of the will, its
due execution and the testamentary capacity of
the testatrix has to be resolved in favor of the
allowance of probate of the will submitted
herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the
said will was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person, the
evidence adduced have not shown any instance
where improper pressure or influence was
exerted on the testatrix. (Private respondent)
Clemente Sand has testified that the testatrix was
still alert at the time of the execution of the
will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also
established that she is a very intelligent person
and has a mind of her own. Her independence of
character and to some extent, her sense of
superiority, which has been testified to in Court,
all show the unlikelihood of her being unduly
influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue
influence or improper pressure in question
herein only refer to the making of a will and not
as to the specific testamentary provisions therein
which is the proper subject of another
proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the
disallowance of the will herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred
over intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted
3
herein must be admitted to probate. (Citations
omitted.)
On appeal, said Decision was reversed, and the petition for probate
of decedent's will was dismissed. The Court of Appeals found that,
"the holographic will fails to meet the requirements for its
4
validity." It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:

45

Art. 813: When a number of dispositions

appearing in a holographic will are signed without
being dated, and the last disposition has a
signature and date, such date validates the
dispositions preceding it, whatever be the time of
prior dispositions.
Art. 814: In case of insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that the
erasures, alterations and cancellations made thereon had not been
authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a
5
will. Thus, in a petition to admit a holographic will to probate, the
only issues to be resolved are: (1) whether the instrument submitted
is, indeed, the decedent's last will and testament; (2) whether said
will was executed in accordance with the formalities prescribed by
law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the
execution of the will and its signing were the voluntary acts of the
6
decedent.
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate
of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), 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. 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 last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
7
handwritten by the testator himself, as provided under Article 810
of the New Civil Code, thus:
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.
(Emphasis supplied.)
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is
unquestionably handwritten by the testator.

46

A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and
date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814. In
the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
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. Manresa gave
an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
8
1985." (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
9
testator's signature, their presence does not invalidate the will
10
itself. The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article
688.
Art. 688: Holographic wills may be executed only by persons of
full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words,
the testator must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the New Civil Code
and not those found in Articles 813 and 814 of the same Code are
essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass
only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain
11
provisions of the will. In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in
its entirety). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992,
is REVERSED and SET ASIDE, except with respect to the invalidity of
the disposition of the entire house and lot in Cabadbaran, Agusan del
Norte. The Decision of the Regional Trial Court of Quezon City,
Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie Sand, is
hereby REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs. SO ORDERED.
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.
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. ...

47

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

48

... 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.

of the holographic Will of the deceased Bibiana Roxas de Jesus is

reinstated. SO ORDERED.
-------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.:

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:

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.

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. ...

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.

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.

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.

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.

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

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

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

49

directly to this Court, the amount involved being over P200,000.00,

on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and that the will was
actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan,
Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom
the will was acknowledged by the testatrix and attesting witnesses,
and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and
testament at his house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one unsigned copy
in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit
"A" consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting
witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and supplemental petition
and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show
that the original of the will and its duplicate were subscribed at the
end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as
witnesses (except for the missing signature of attorney Natividad on
page three (3) of the original); that pages of the original and
duplicate of said will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be recited therein
and is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix that the
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in
duplicate copies; and that both the original and the duplicate copies
were duly acknowledged before Notary Public Jose Oyengco of
Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3)
of the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page three (3) was
signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the
effect that the signatures of the testatrix in the duplicate (Exhibit "A-

1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and
with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as may
be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not to
look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court
was, that the testatrix signed both original and duplicate copies
(Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary
public who acknowledged the will; and Atty. Samson, who actually
prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty.
Fermin Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the
testatrix and the witnesses. The opinion of expert for oppositors, Mr.
Felipe Logan, that the signatures of the testatrix appearing in the
duplicate original were not written by the same had which wrote the
signatures in the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos for the
proponents, but principally because of the paucity of the standards
used by him to support the conclusion that the differences between
the standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides those
affixed to the original of the testament (Exh. A); and we feel that with
so few standards the expert's opinion and the signatures in the
duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3
and 4 fail to show convincingly that the are radical differences that
would justify the charge of forgery, taking into account the advanced
age of the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting power.
On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy being in
the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson
vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as
well die intestate. The testamentary dispositions that the heirs
should not inquire into other property and that they should respect
the distribution made in the will, under penalty of forfeiture of their

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shares in the free part do not suffice to prove fraud or undue

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