Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January
3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado
was signed by himself and also by us below his name and of this attestation clause and that of the left
margin of the three pages thereof. Page three the continuation of this attestation clause; this will is
written in Ilocano dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred
forty three, (1943) A.D.

(Sgd.) NUMERIANO
EVANGELISTA

(Sgd.) "ROSENDA
CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado,
followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have
written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the
left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the
end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of
each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the
Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no need for such recital because the cross written by the
testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even
one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere
sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered. Feria, Pablo,
Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 42258

September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,

vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935,
praying for the reconsideration of the decision of the court and that of the same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will
where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental
condition to make it.
We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in
her brief have not been duly considered, whether some fact or detail which might have led us to another
conclusion has been overlooked, or whether the conclusions arrived at in our decision are not supported by the
evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years,
was in good health until September 1, 1933. She had a slight cold on said date for which reason she was
visited by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and
found her still suffering from said illness but there was no indication that she had but a few days to live. She ate
comparatively well and conserved her mind and memory at least long after noon of September 7, 1933. She
took her last nourishment of milk in the morning of the following day, September 8, 1933, and death did not
come to her until 11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September
7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to
make a will and bequeath her property to the petitioner Victorio Payad in compensation according to her, for his
diligent and faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who
had been in her home from childhood. The will was written by Attorney Almario in his own handwriting, and was
written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the
presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The
testatrix approved all the contents of the document and requested Attorney Almario to write her name where
she had to sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary
strength to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney

Almario proceeded to write the name of the testatrix on the three pages composing the will and the testatrix
placed her thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in
order to place the mark between her name and surname, after she herself had moistened the tip of her thumb
with which she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later
signed the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer
Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same
circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and
that she never made said will because she was no longer physically or mentally in a condition do so, the
oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of
September 7, 1933, in the house of the deceased where they were then living, and that the first time that they
saw him there was at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was
already dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by
woman named Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz
and Perfecto L. Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit
that their room was situated at the other end of the rooms occupied by the deceased herself and by the
petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated by the stairs of the
house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian
Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria
Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen
which was situated under the house. Under such circumstances it is not strange that the two did not see the
testatrix when, according to the evidence for the petitioner, she made her will and signed it by means of her
thumbmark. In order to be able to see her and also Almario and the instrumental witnesses of the will, on that
occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room
where the will was prepared by Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she
could not move and that she could hardly be understood because she could no longer enunciate, making it
understood thereby, that in such condition it was absolutely impossible for her to make any will. The attorney
for the oppositor insists likewise and more so because, according to him and his witness Paz de Leon, two
days before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make
herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitionerappellant or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate
them, we have of record the testimony of the physician of the deceased and the accountant Ventura Loreto
who are two disinterested witnesses, inasmuch as the outcome of these proceedings does not affect them in
the least. The two testified that two, three or four days before the death of the testatrix, they visited her in her
home, the former professionally, and the latter as an acquaintance, and they then found her not so ill as to be
unable to move or hold a conversation. They stated that she spoke to them intelligently; that she answered all
the questions which they had put to her, and that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for
reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased
left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with
instructions not to open it until after her death; (2) that there are witnesses competent to testify on the letter in
question, in addition to other evidence discovered later, which could not be presented at the trial; (3) that in the
letter left by the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her
death, all the property in question should become Yangco's. From this alleged fact, the oppositor infers that the
deceased never had and could not have had the intention to make the will in question, and (4) that said
oppositor knew of the existence of said letter only after her former attorney, Alejandro Panis, had been informed
thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion
alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare

the will of the deceased but he did not do so because after seeing her he had been convinced that she could
not make a will because she had lost her speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by
the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered
evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been
informed of the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this
court. It is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor
the fact that the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and
the judgment was rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly discovered evidence
inasmuch as the judgment of the lower court was favorable to her. She, however, overlooks the fact that she
also appealed from the decision of the lower court and it was her duty, under the circumstances, to inform this
court of the discovery of said allegedly newly discovered evidence and to take advantage of the effects thereof
because, by so doing, she could better support her claim that the testatrix made no will, much less the will in
question. Said evidence, is not new and is not of the nature of that which gives rise to a new trial because,
under the law, in order that evidence may be considered newly discovered evidence and may serve as a
ground for a new trial, it is necessary (a) that it could not have been discovered in time, even by the exercise of
due diligence; (b) that it be material, and (c) that it also be of such a character as probably to change the result
if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly
discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court.
It is simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to
Teodoro R. Yangco would, in the eyes of the law, be considered important or material evidence but this court
has not the letter in question before it, and no attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more
competent than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to
help the deceased Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the
deceased was almost unconscious, was unintelligible and could not speak, it does not necessarily mean that
on the day she made her will, September 7, 1933, she had not recovered consciousness and all her mental
faculties to capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify
pursuant to his affidavit in question is not and can not be newly discovered evidence of the character provided
for by law, not only because it does not exclude the possibility that testatrix had somewhat improved in health,
which possibility became a reality at the time she made her will because she was then in the full enjoyment of
her mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio
Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court of First
Instance, Attorney Viola was present, and the oppositor then could have very well called him to the witness
stand, inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did not call him.
The last fact is shown by the following excerpt from pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the
last witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the
will of the deceased in his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? Mr. PANIS: No, Your
Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness
stand? Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.
COURT: And when can he come? Mr. PANIS. I am now going to find out, Your Honor. If the other
party, Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney
Fernando Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to
the deceased to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I
am going waive the presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party would not admit that
proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice
to the other party's calling the witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have
been because she considered his testimony unimportant and unnecessary, and at the present stage of the
proceedings, it is already too late to claim that what said attorney may now testify is a newly discovered
evidence.
For the foregoing considerations, those stated by this court in the original decision, and the additional reason
that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly
discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for
reconsideration and a new trial filed by the oppositor are hereby denied, ordering that the record be remanded
immediately to the lower court. So ordered.
Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because
the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point, being a part of the
testimony of the said Isabeo Jena:
Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A.
1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at
the moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign
(en actitud de firmar). I believe he signed, because he was at the table. . . .
Q.

1641

State positively whether Julio Javellana did or did not sign as a witness to the will.

A.
1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the
pen in his hand, in position ready to sign. I believe he signed.
Q.

1641

Why do you believe Julio Javellana signed?

A.
1641 Because he had the pen in his hand, which was resting on the paper, though I did not
actually see him sign.
Q.

1641

Explain this contradictory statement.

A.
1641 After I signed I asked permission to leave, because I was in a hurry, and while I was
leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and
when I was near the door I happened to turn my face and I saw that he had his hand with the pen
resting on the will, moving it as if for the purpose of signing.
Q.
1641 State positively whether Julio moved his hand with the pen as if for the purpose of
signing, or whether he was signing
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the
parties to the proceedings, but the court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances
the document in question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in
question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses,
executed the said document as his will. They were all together, and were in the room where Jaboneta
was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the other two witnesses. Aniceto Jalbuena then
signed as a witness in the presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the
room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position
to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after
Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and
of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not
signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure.
The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing
his signature to the will, taken together with the testimony of the remaining witnesses which shows that
Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving, and that his back was turned while a portion of the
name of the witness was being written, is of no importance. He, with the other witnesses and the testator, had
assembled for the purpose of executing the testament, and were together in the same room for that purpose,
and at the moment when the witness Javellana signed the document he was actually and physically present
and in such position with relation to Javellana that he could see everything which took place by merely casting
his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore we are
of opinion that the document was in fact signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence of the testator is said to
be that the testator may have ocular evidence of the identity of the instrument subscribed by the
witness and himself, and the generally accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the
purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose
to do so; and there are many cases which lay down the rule that the true test of vision is not whether the
testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and
physical condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator and the witnesses
are equally applicable in determining whether the witnesses signed the instrument in the presence of each
other, as required by the statute, and applying them to the facts proven in these proceedings we are of opinion
that the statutory requisites as to the execution of the instrument were complied with, and that the lower court
erred in denying probate to the will on the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should
therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the
record will be returned to the court form whence it came, where the proper orders will be entered in
conformance herewith. So ordered.
Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument propounded as
a will in the court below, is whether one of the subscribing witnesses was present in the small room where it
was executed at the time when the testator and the other subscribing witnesses attached their signatures; or
whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller
room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to
see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they attached their signatures to the instrument,

and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the
document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital importance
in the determination of this case, as he was of opinion that under the doctrine laid down in the case
of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the
outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it
been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the time when the
testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the line of vision from this witness to the testator and
the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from
the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have been seen each other sign, had they
chosen to do so, considering their mental and physical condition and position with relation to each
other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they would not have been able to see each other sign
at that moment, without changing their relative positions or existing conditions. The evidence in the case relied
upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was
actually and physically present and in such position with relation to Jaboneta that he could see everything that
took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend
upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by
each of them, but that at that moment existing conditions and their position with relation to each other were
such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend
the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in
the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will
and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration
and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and
testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by
the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the
three (3) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court
commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who
testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with their corresponding addresses so that they could be
properly notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex
partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the
motion together with the previous manifestation and/or motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were
still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the
intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the
three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of
one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in letters placed on the upper
part of each page.

The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,
and that the lacier witnesses and signed the will and the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid,
it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign
at the same place or at the end, in the presence of the testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature intended to place so heavy an import on the space or
particular location where the signatures are to be found as long as this space or particular location wherein the
signatures are found is consistent with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator
himself or by the testator's name written by another person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those things are, done which the
statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other
hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification
of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to
the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should
be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444,
449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on
the law on wills in this project consists in the liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions
to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the
testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a
will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the
place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the
will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned
order.

We have examined the will in question and noticed that the attestation clause failed to state the number of
pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses
signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause
and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two
pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to
the purpose of the requirement that the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon
which the win is written, which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of the pages of the will to
the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of
Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50
Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a statement of
the number of sheets or pages composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets or pages upon
which the will is written, however, the last part of the body of the will contains a statement that
it is composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by
purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the testament was ratified by testatrix and
all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no
control where the purpose of the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the fun observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the
probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to
conduct further proceedings in accordance with this decision. No pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased,
and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published
for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also
caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10,
1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence,
on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special
administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959,
he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a
will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the
amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July
30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their
respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed directly to this Court, the amount involved being over
P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before
and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and
Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses
on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the
will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing
of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last
will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both

testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of the
petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1"
is signed by the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate
were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another
as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that
pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains
all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will
is written in the language known to and spoken by the testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies;
and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have
lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his
presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the
duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original,
and further aver that granting that the documents were genuine, they were executed through mistake and with
undue influence and pressure because the testatrix was deceived into adopting as her last will and testament
the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts
and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby
proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not
enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of
free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually
prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and
spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson,
together before they were actually signed; that the attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the
signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to
support the conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with
so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the
duplicate being signed right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not
appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's
expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than
others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property
and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the
free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate
being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter
to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco
vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two
other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and
the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de
Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence
that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the statutory
requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law,
this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in
the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters
or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy
to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue
or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third
page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and
invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect
the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The
amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere
proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,
vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.
Nestor P. Mondok for petitioner.
Lazaro Padong for private respondents.

PUNO, J.:
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of appeals 1 in CAG.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by Calibia Lingdan Bulanglang,
who died on March 20, 1976.
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 allowance before the RTC of Bontoc, Mt.
Province, Br. 36. 2 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 And all of you signed on the same table?
A Yes, sir.
Q And when you were all signing this Exhibit "B" and "B-1", 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.
Q After Calibia Lingdan Bulanglang was made to sign I withdraw the
question. How did Calibia Lingdan Bulanglang sign the last will and
testament?
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.
Q After she signed, who was the second to sign allegedly all of you there
present?
A Jose Becyagen.
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?

ATTY. DALOG:
He already testified under oath, Your Honor.
COURT:
Witness may answer
A Yes, sir.
For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the
codicil that:
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 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 self-perception, or autopsy, of the thing itself.
From the point of view of the litigant party furnishing this source of belief, it may be
termed Autoptic Proference. 3 (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.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting
to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February
14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation
clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with
costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103554 May 28, 1993

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

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or
not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in
the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was
duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation
of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies
and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,
Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the
testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding
No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent
scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away
before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of
the legatees named in the will, sough his appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March
6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition,
entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No.
3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in
Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the
appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional
Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July
20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives
since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984
the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the
testator was already in the poor state of health such that he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos,
testified that the testator executed the will in question in their presence while he was of sound and disposing
mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not
unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses
were not presented in the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court
that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of

his Will during his lifetime when he caused the filing of the original petition now marked Exhibit
"D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their avowal and
intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came
out of it because they abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo
Caballero and that it was executed in accordance with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in
CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that they also signed the will and all the pages
thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling
that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil
Code, thus:
The question therefore is whether the attestation clause in question may be considered as
having substantialy complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is "we do certify
that the testament was read by him and the attestator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin in the presence of the said testator and in the
presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to indicate
the meaning that the said will was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language of the law would have it that
the testator signed the will "in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another." If not completely or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance with the requirement of the
law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the
latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent
court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter
and are now questioning once more, on the same ground as that raised before respondent court, the validity of
the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations
which we feel should be made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil
Code, there are two kinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the

left margin, and all the pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation should state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be interpreted to
them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting
witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who
would read the will and communicate its contents to him in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again,
by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and
signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or
dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the essential formalities required by law has been
observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity
of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator
signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and
of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages; 23 whereas the subscription of the signature of the testator and the attesting witnesses is
made for the purpose of authentication and identification, and thus indicates that the will is the very same
instrument executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as
embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the
due execution of a will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to
the testator, it need be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator
and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be
followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on wills in
this Project consists in the liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in the
execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets
all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective
signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the
end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on
the Opposite of our respective names, we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will and Testament and
he has the same and every page thereof, on the spaces provided for his signature and on the
left hand margin, in the presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the
act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to
attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and
legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of
the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the will in
order to see and take note mentally that those things are done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of identification of such paper as the will which was
executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of
each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the testator sign the will and all its pages in their presence and that
they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each
other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses
and states as well the number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and
on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the
presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify
and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly
lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof
in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is not proved that the will was in fact executed and attested
in substantial compliance with all the requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it
does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each
other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on
various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of
effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged
caution in the application of the substantial compliance rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the
will was notarized. All theses are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check against perjury
in the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the
form of the attestation or the language employed therein. Such defects or imperfections would not render a will
invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this
regard, however, the manner of proving the due execution and attestation has been held to be limited to merely
an examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a
situation, the defect is not only in the form or language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no plausible way by which we can read
into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses
also signed the will and every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents
since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or
a consideration of matters apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted
textual requirements were actually complied within the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can
be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no
basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would
accordingly be doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but
the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan
vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will, hence when an interpretation
already given assures such ends, any other interpretation whatsoever that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. The
subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39Pecson vs.
Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that should be observed
in the execution of wills are mandatory in nature and are to be strictly construed was followed in the
subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs.
Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely on a
series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920],
41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas
L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series
of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924],
46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does
not recite that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a defect annuls the will. The case
of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein
it was held that the attestation clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and
the witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to state
such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we
rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be mentioned. In
the first place, the Mojal, decision was concurred in by only four members of the court, less
than a majority, with two strong dissenting opinions; the Quintana decision was concurred in
by seven members of the court, a clear majority, with one formal dissent. In the second place,
the Mojal decision was promulgated in December, 1924, while the Quintana decision was

promulgated in December, 1925; the Quintana decision was thus subsequent in point of time.
And in the third place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the case is
here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part provided in section 61, as
amended that "No will . . .shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shallstate the number of sheets or pages used, upon which the
will is written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the presence
of the testator and of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention. It is not within the
province of the courts to disregard the legislative purpose so emphatically and clearly
expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases
in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared
to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs.
Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir
vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination
towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed
this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said
rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance with
the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance
with the legal formalities and had even said that the provisions of Section 618 of the Code of
Civil Procedure, as amended regarding the contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become more
liberal in the interpretation of the formalities in the execution of wills. This liberal view is
enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to the
original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act
No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the
main objective of the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of
the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active
case and thereafter duly proceed with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu,
and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last
will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the
said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud,
deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having
been fully informed of the content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the
Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given
due course.
The only question presented for determination, on which the decision of the case hinges, is whether the
supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to

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

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will
and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 74695 September 14, 1993

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

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the
late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein
he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at
the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who were
present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent,
as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the
three instrumental witnesses and the notary public. The latter four followed the reading with their own
respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th
day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa
Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some
dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will,
the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial
will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by
private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was
not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated
to make a will at the time of its execution due to senility and old age; that the will was executed under duress,
or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part
of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate
Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of
the appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and
the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was
admittedly not complied with, probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that
Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness,
the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to
the testator with each of the three instrumental witnesses and the notary public following the reading with their
respective copies of the instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his
"Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article
complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the
time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three
(3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his
first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under
Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he
can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner
presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute
of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms
by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read
on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the
testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied
with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will
and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the
actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof
known to him, so that he may be able to object if they are not in accordance with his wishes . .
.
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason
or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the
scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether
Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of
the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The
purpose is to make known to the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness,
it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading suffices
for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of
the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of
the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator,
his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed,
upon being asked, that the contents read corresponded with his instructions. Only then did the signing and

acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the
will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado
already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his
conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the
will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the
contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons
following the reading word for word with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses were persons known to the testator, one being his
physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict compliance with
the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which, when taken into account, may only
defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the
Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the
codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance had been rendered unnecessary by
the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of
his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has
been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April
1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is
immediately executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE
JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge
Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503
entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by
petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration
had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic
Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the
hearing of the probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging
to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her
children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The
will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a
lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel
Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her
signature. They further testified that their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their
mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported
holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was
executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the
alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will
and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil
Code. She contends that the law requires that the Will should contain the day, month and year of its execution
and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate
of the holographic Will on the ground that the word "dated" has generally been held to include the month, day,
and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de

Jesus, is hereby disallowed for not having been executed as required by the law. The order of
August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana
Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in
or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code
require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void for noncompliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its
execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the
California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is
invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of
the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills
are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in
the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law on wigs in
this Project consists in the liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards
and restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the formalities in the
execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that which the
law can make. For this reason, intestate succession is nothing more than a disposition based
upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and
bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA
422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of
bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be considered in the
application of any given rule. If the surrounding circumstances point to a regular execution of
the wilt and the instrument appears to have been executed substantially in accordance with

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

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 83843-44

April 5, 1990

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.
COURT OF APPEALS, 1 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 8102 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. P-1652, 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-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)
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."
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.
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.
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.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitionerappellant,

vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas
Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang
sumusunod:

Vicente Esguerra,
Sr. .............................................

5 Bahagi

Fausto E.
2 Bahagi
Gan ......................................................
...

Rosario E.
2 Bahagi
Gan ......................................................
...

Filomena
1 Bahagi
Alto .......................................................
...

Beatriz
1 Bahagi
Alto .......................................................
.......

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking
asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit
ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang
aking asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor
executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to
probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements
in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose
testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra,
her desire to make a will. She confided however that it would be useless if her husband discovered or knew
about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness, provided the document was entirely in
her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on
the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her
niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad
was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina
Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these
she showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted
the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her
husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it
the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several
years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin
Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several
weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the
couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the
most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The
whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections
and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the
whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons
swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were
these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband
would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that
witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is
hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte
to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not
and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were
presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The
oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same
matters, because in our opinion the case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms,
including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is
subject to no other form and may be made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty
years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses
in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator
signed in their presence and that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent
substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid
those who have no right to succeed the testator would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when
authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the
courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if
there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34
Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional
witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the
circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated,
they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the
testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in
the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be
necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if
the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be
mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand.
However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert
witnesses, who after comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court,
in view of such contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are
not available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can
the oppositor prove that such document was not in the testator's handwriting? His witnesses who know
testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the
alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will,
therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and
the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and having no interest to check the authenticity
thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not "been
shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of
such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings

sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick
to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And
the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the
execution, but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by
secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not
have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123;
Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or
stolen4 an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who
shall subscribe it and require its identity to be established by the three witnesses who depose that they have no
reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity
of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself.
Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may make "any statement they may desire to submit
with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done
by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such relatives to state whether they know of the
will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do
unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if
they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document
is not presented for their examination. If it be argued that such choice is not essential, because anyway the
relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the
right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding
inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme
Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having
been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing
the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision
of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce
no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del
Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por
testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y
eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando
se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal,
y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se
encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para
au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de
autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de
la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish
Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos
e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI
meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que
fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E
depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto
de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance with his
holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be
fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a
lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or
read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of
Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this
controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency,
rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the
wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the
subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss
of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie.
And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the
likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the
fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he
may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no
interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity.
The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have
no way to expose the trick and the error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery
would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde
and other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of
a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly
saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In
addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and
Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the
will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to
measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying
reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic will has been established and the handwriting and
signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed
from and the probate of the holographic will in question be called for. The rule is that after plaintiff has
completed presentation of his evidence and the defendant files a motion for judgment on demurrer to
evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be
rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the
holographic will of the testator Matilde Seo Vda. de Ramonal. 2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 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 will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property was about
P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for
probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an
impression that a "third hand" of an interested party other than the "true hand" of Matilde Seo Vda. de
Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on 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.1wphi1.nt
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting
their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and
legal basis for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well
taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported
Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence and
lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the respondents
once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon;
(3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was filed. He produced and identified the records of the case.
The documents presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose
of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as
genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's
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 Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from
1958 to 1969. During those eleven (11) years of close association 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 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
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 signed documents in her presence, when
the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth,
and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of
the deceased. She testified that the signature appearing in the holographic will is the true and genuine
signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay,
Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was meritorious. Citing the
decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
. . . 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 testator's hand; or even if so familiarized, the witness maybe 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 see, the law foresees, the possibility that no qualified witness ma 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. Delfianado, 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 will's authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced is
convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court,
in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent
that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested,
Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No
witness need be present in the execution of the holographic will. And the rule requiring the production
of three witnesses is merely permissive. What the law deems essential is that the court is convinced of
the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much
interested in the proponent that the true intention of the testator be carried into effect. And because the
law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be

drawn from a party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses
definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were
those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay,
the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature
therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to
present credible evidence to that the date, text, and signature on the holographic will written entirely in
the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of
Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or
mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in the will is the genuine signature of the
testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word
"shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when
used in a statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In
the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented
is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of
the testator.
So, we believe that the paramount consideration in the present petition is to determine the true intent of the
deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent
of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar
with the handwriting of 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 voter's affidavit, which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan,
Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?

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

xxx

xxx

xxx

Q. Who sometime accompany her?

A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
xxx

xxx

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 is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of
the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.14
xxx

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?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
xxx

xxx

xxx

Q. You testified that at time of her death she left a will. I am showing to you a document with its title
"tugon" is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or
gave to her tenants. She did not declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in
the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de
Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the possession of
your mother?
A. 1985.17
xxx

xxx

xxx

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

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

xxx

xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in
the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards
letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
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xxx

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

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the
alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the
hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the
testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the
period of 22 years. Could you tell the court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda
de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
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Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a
signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased
was because she lived with her since birth. She never declared that she saw the deceased write a note or sign
a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am
related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
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xxx

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate
children?
A. As far as I know they have no legitimate children.25
xxx

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xxx

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

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

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xxx

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

xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal
Waga and tell the court whether you are familiar with the handwriting contained in that document
marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court
whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose
signature is that?

A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
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xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely
supposing that it seems to be her signature because it is similar to the signature of the project of
partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator,
which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in
the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it
even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased with
other documents signed and executed by her during her lifetime. The only chance at comparison was during
the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the
documents which contained the signature of the deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when compared with
other documents written by the testator. The signature of the testator in some of the disposition is not readable.
There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, 33 and the signatures in several
documents such as the application letter for pasture permit dated December 30, 1980, 34 and a letter dated June
16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling
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.1wphi1.nt

No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Republic of the Philippines

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

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance
of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence
required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957,
Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said
testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the
nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the
holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he recognized all the signatures
appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and
the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H
and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of
the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing therein are the signatures of the
testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will
was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the stenographic notes, when the same witness was
asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata
Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the
penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the
proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the
amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and
improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not

seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th
day of August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present
three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate
being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the
body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness because the
will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production
of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should
be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not required to
produce more than one witness; but even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the execution of a holographic will, none being required by
law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or
even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the
same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for
resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and
only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement
can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at
least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805).
Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it
necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their
testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry,
for the state is as much interested as the proponent that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator,
Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la
conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten
insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe
de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del
testamento olografo lo hace necesario para mayor garantia de todos los interes comprometidos en
aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los
testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la
autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo
apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion,
para responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be
drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is
not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to construe the
import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the
Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on
record shall not be retaken. No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.