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.

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.

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

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.

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

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 abovementioned, 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

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

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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4067

November 29, 1951

(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
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 CebuanoVisayan 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.

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

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.

Lingdan Bulanglang sign the last will and

testament?

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.

Q After she signed, who was the second to sign

allegedly all of you there present?

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.

A Jose Becyagen.
Q With what did Jose Becyagen sign the
testament, Exhibit "B" and "B-1"?
A Ballpen.

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 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?

Q And all of you signed on the same table?

A Yes, sir.
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?

Q And then after you signed, who was the next to

sign the document, Exhibit "B" and "B-1"?
A Hilario Coto-ong.

Q Who was the first to sign?

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 Calibia Lingdan Bulanglang.

A Yes, sir.

Q After Calibia Lingdan Bulanglang was made to

sign I withdraw the question. How did Calibia

Q And that is the truth and you swear that to be

the truth before the Honorable Court?

A Yes, sir.

ATTY. DALOG:
He already testified under oath, Your Honor.
COURT:
Witness may answer

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;

A Yes, sir.
For his part, Obanan Ticangan likewise admitted during crossexamination 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:

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:

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.

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.

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.

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.

SO ORDERED.

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.

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

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

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

G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,

vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of these sheets is signed on the
left margin by the testatrix and the three witnesses, nor numbered by letters; and
these omissions, according to appellants' contention, are defects whereby the
probate of the will should have been denied. We are of the opinion that the will was
duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No.
2645 (which is the one applicable in the case) evidently has for its object (referring to
the body of the will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are wholly written on
only one sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must
have referred to the sheets which the testator and the witnesses do not have to sign
at the bottom. A different interpretation would assume that the statute requires that
this sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty, same signatures, affixed on
another part of same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the witnesses must sign
on the sheet that it would consider that their signatures written on the bottom do not
guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient
security.

In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of Act
No. 2645 is to know whether any sheet of the will has been removed. But, when all
the dispositive parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although unnumbered, cannot
be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, referring specially to the signature of
the testatrix, we can add that same is not necessary in the attestation clause because
this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the
testator and three witnesses and the second contains only the attestation clause and
is signed also at the bottom by the three witnesses, it is not necessary that both
sheets be further signed on their margins by the testator and the witnesses, or be
paged.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance appearing in
the will itself that same was executed in the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor is enough, in the absence of any proof to
the contrary, to presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with
costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

Republic of the Philippines

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

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA

VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano,
the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance
and admission to probate of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor
thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice
thereof to be published for three (3) successive weeks, previous to the time
appointed, in the newspaper "Manila chronicle", and also caused personal service of
copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her
opposition; and on November 10, 1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected. Hence, on November 18, 1958,
the court issued an order appointing the Philippine Trust Company as special
administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of the alleged
will.

On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended
and supplemental petition, alleging that the decedent left a will executed in duplicate
with all the legal requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On
June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed
their joint opposition to the admission of the amended and supplemental petition, but
by order of July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court issued the
order admitting the will and its duplicate to probate. From this order, the oppositors
appealed directly to this Court, the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in
the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate at the house of her daughter
Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested
by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and
by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was
actually prepared by attorney Fermin Samson, who was also present during the
execution and signing of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said
three instrumental witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So
did the Notary Public before whom the will was acknowledged by the testatrix and
attesting witnesses, and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at his house in
Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously
with the filing of the petition and marked as Exhibit "A" consists of five pages, and
while signed at the end and in every page, it does not contain the signature of one of
the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and
every page.
The testimony presented by the proponents of the will tends to show that the original
of the will and its duplicate were subscribed at the end and on the left margin of each
and every page thereof by the testatrix herself and attested and subscribed by the
three mentioned witnesses in the testatrix's presence and in that of one another as

witnesses (except for the missing signature of attorney Natividad on page three (3) of
the original); that pages of the original and duplicate of said will were duly numbered;
that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix that the attestation clause is in a
language also known to and spoken by the witnesses; that the will was executed on
one single occasion in duplicate copies; and that both the original and the duplicate
copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the
same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original,
admits that he may have lifted two pages instead of one when he signed the same,
but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were
they written or affixed on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed through mistake and
with undue influence and pressure because the testatrix was deceived into adopting
as her last will and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not mentioned in
the will, and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",
respectively) of the will spontaneously, on the same in the presence of the three
attesting witnesses, the notary public who acknowledged the will; and Atty. Samson,
who actually prepared the documents; that the will and its duplicate were executed in
Tagalog, a language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together before they were
actually signed; that the attestation clause is also in a language known to and spoken
by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original were not
written by the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin Ramos
for the proponents, but principally because of the paucity of the standards used by
him to support the conclusion that the differences between the standard and
questioned signatures are beyond the writer's range of normal scriptural variation.
The expert has, in fact, used as standards only three other signatures of the testatrix
besides those affixed to the original of the testament (Exh. A); and we feel that with so
few standards the expert's opinion and the signatures in the duplicate could not be
those of the testatrix becomes extremely hazardous. This is particularly so since the

comparison charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into account the advanced
age of the testatrix, the evident variability of her signatures, and the effect of writing
fatigue, the duplicate being signed right the original. These, factors were not
discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different surfaces and
reflecting power. On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some
heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27;
Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the distribution made in the
will, under penalty of forfeiture of their shares in the free part do not suffice to prove
fraud or undue influence. They appear motivated by the desire to prevent prolonged
litigation which, as shown by ordinary experience, often results in a sizeable portion of
the estate being diverted into the hands of non-heirs and speculators. Whether these
clauses are valid or not is a matter to be litigated on another occassion. It is also well
to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz.
168, fraud and undue influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of definite evidence against
the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in
the course of signing, is not per se sufficient to justify denial of probate. Impossibility
of substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by testatrix and
all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full observance
of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure
oversight is shown by his own testimony as well as by the duplicate copy of the will,

which bears a complete set of signatures in every page. The text of the attestation
clause and the acknowledgment before the Notary Public likewise evidence that no
one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are otherwise
satisfied. Thus, despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator and witnesses, but not in
the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476);
and that despite the requirement for the correlative lettering of the pages of a will, the
failure to make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud and bid faith but
without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The amended petition did not
substantially alter the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests were involved
(the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs
against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

and faithful compliance with all the detailed requisites under Article 805 of the Code
leave little room for doubt as to the validity in the due execution of the notarial will.
Article 806 likewise imposes another safeguard to the validity of notarial wills that
they be acknowledged before a notary public by the testator and the witnesses. A
notarial will executed with indifference to these two codal provisions opens itself to
nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10
June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution of
notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which
the will is written is fatally defective. A will whose attestation clause is not
signed by the instrumental witnesses is fatally defective. And perhaps most
importantly, a will which does not contain an acknowledgment, but a merejurat,
is fatally defective. Any one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will. Full

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko
lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong
sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya
at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon,
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela
at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling
habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng
piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

The three named witnesses to the will affixed their signatures on the left-hand margin
of both pages of the will, but not at the bottom of the attestation clause.

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng
lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng
Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the properties
of the decedent.3 It also asserted that contrary to the representations of petitioner, the
decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who
were then residing abroad. Per records, it was subsequently alleged that decedent
was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to
in accordance with law. She pointed out that decedents signature did not appear on
the second page of the will, and the will was not properly acknowledged. These twin
arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992.6 The RTC favorably took into account the testimony of the three (3) witnesses
to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also
called to fore "the modern tendency in respect to the formalities in the execution of a
will x x x with the end in view of giving the testator more freedom in expressing his
last wishes;"7 and from this perspective, rebutted oppositors arguments that the will
was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the
will after the signature of the testatrix, the following statement is made under the subtitle, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng
lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."

The solution to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.

The aforequoted declaration comprises the attestation clause and the

acknowledgement and is considered by this Court as a substantial compliance with
the requirements of the law.

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.

On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the signing
by the subscribing witnesses on the left margin of the second page of the will
containing the attestation clause and acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively
in letters placed on upper part of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will is composed of only two
pages. The first page contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to invalidate the will. For the
same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a
forgery, the testimonies of the three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of the testatrix and the due
execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated
17 August 1995, the Court of Appeals reversed the trial court and ordered the
dismissal of the petition for probate.9 The Court of Appeals noted that the attestation
clause failed to state the number of pages used in the will, thus rendering the will void
and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11

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 attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of the
will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will.12 There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in; hence, the requisite was left uncomplied
with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will.15 In ruling that
the will could not be admitted to probate, the Court made the following consideration
which remains highly relevant to this day: "The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the document might easily
be so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the
total number of sheets such removal might be effected by taking out the sheet

and changing the numbers at the top of the following sheets or pages. If, on the
other hand, the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages and the forging of
the signatures of the testator and witnesses in the margin, a matter attended with
much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed
out in the attesting clause is fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security against the danger that the will
may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v.
Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and made
the following distinction which petitioner is unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if
the attestation does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra," although the attestation in the subject Will did
not state the number of pages used in the will, however, the same was found in the
last part of the body of the Will:

of sheets or pages composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body of the will
contains a statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom
while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and Testament
consists of two pages including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in
1950, at a time when the statutory provision governing the formal requirement of wills
was Section

"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the will is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque
vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata,
54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these
cases seems to be that the attestation clause must contain a statement of the number

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of the
will is extant from Section 618.23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of wills, at least insofar as
the attestation clause is concerned, that may vary from the philosophy that governed
these two cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions on
the [law] on [wills] in this project consists in the [liberalization] of the manner of their
execution with the end in view of giving the testator more [freedom] in [expressing] his
last wishes. This objective is in accord with the [modern tendency] in respect to the
formalities in the execution of wills."24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same paragraph he cites
from their report, that such liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation clause
in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction.28 However, the Code
Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by
an examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear
in the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to the
will in the presence of the testator and of each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need
of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure
by the attestation clause to state that the testator signed every page can be liberally
construed, since that fact can be checked by a visual examination; while a failure by
the attestation clause to state that the witnesses signed in one anothers presence

should be considered a fatal flaw since the attestation is the only textual guarantee of
compliance.32
The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages.33 The failure to state the number of
pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation inSingson and Taboada. However, in this case,
there could have been no substantial compliance with the requirements under Article
805 since there is no statement in the attestation clause or anywhere in the will itself
as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of
the members of the Code Commission in incorporating Article 805, the fact remains
that they saw fit to prescribe substantially the same formal requisites as enumerated
in Section 618 of the Code of Civil Procedure, convinced that these remained
effective safeguards against the forgery or intercalation of notarial wills.34 Compliance
with these requirements, however picayune in impression, affords the public a high
degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The transcendent
legislative intent, even as expressed in the cited comments of the Code
Commission, is for the fruition of the testators incontestable desires, and not
for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand
margin."37 While three (3) Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.

There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three witnesses on the
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any or all of the
witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be "attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the
clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental witnesses signatures on
each and every page, the fact must be noted that it is the attestation clause which
contains the utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required under Article
805 to state the number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.

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

It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary public
by the testator and the witnesses is fatally defective, even if it is subscribed
and sworn to before a notary public.

Republic of the Philippines

SUPREME COURT
Manila

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

FIRST DIVISION
A.C. No. 5281

February 12, 2008

MANUEL L. LEE, petitioner,

vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics
of the legal profession for notarizing a spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr.,
never executed the contested will. Furthermore, the spurious will contained the forged
signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its
execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim
Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena
Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before respondent on June 30,
1965.1 Complainant, however, pointed out that the residence certificate2 of the
testator noted in the acknowledgment of the will was dated January 5,
1962.3 Furthermore, the signature of the testator was not the same as his signature
as donor in a deed of donation4 (containing his purported genuine signature).
Complainant averred that the signatures of his deceased father in the will and in the
deed of donation were "in any way (sic) entirely and diametrically opposed from (sic)
one another in all angle[s]."5
Complainant also questioned the absence of notation of the residence certificates of
the purported witnesses Noynay and Grajo. He alleged that their signatures had
likewise been forged and merely copied from their respective voters affidavits.

Complainant further asserted that no copy of such purported will was on file in the
archives division of the Records Management and Archives Office of the National
Commission for Culture and the Arts (NCCA). In this connection, the certification of
the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in
this Office[s] files.6

this Resolution as Annex "A"; and, finding the recommendation fully

supported by the evidence on record and the applicable laws and rules, and
considering Respondents failure to comply with the laws in the discharge of
his function as a notary public, Atty. Regino B. Tambago is hereby
suspended from the practice of law for one year and Respondents notarial
commission is Revoked and Disqualified fromreappointment as Notary
Public for two (2) years.14
We affirm with modification.

Respondent in his comment dated July 6, 2001 claimed that the complaint against
him contained false allegations: (1) that complainant was a son of the decedent
Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged
that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and
testament was validly executed and actually notarized by respondent per affidavit7 of
Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint
affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee,
Jr. xxx."9
Respondent further stated that the complaint was filed simply to harass him because
the criminal case filed by complainant against him in the Office of the Ombudsman
"did not prosper."
Respondent did not dispute complainants contention that no copy of the will was on
file in the archives division of the NCCA. He claimed that no copy of the contested will
could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against
him as he (complainant) did not first file an action for the declaration of nullity of the
will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.10
In his report, the investigating commissioner found respondent guilty of violation of
pertinent provisions of the old Notarial Law as found in the Revised Administrative
Code. The violation constituted an infringement of legal ethics, particularly Canon
111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the
investigating commissioner of the IBP Commission on Bar Discipline recommended
the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part of

A will is an act whereby a person is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of his estate, to take effect after his
death.15 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills.
The object of solemnities surrounding the execution of wills is to close the door on
bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity.16
A notarial will, as the contested will in this case, is required by law to be subscribed at
the end thereof by the testator himself. In addition, it should be attested and
subscribed by three or more credible witnesses in the presence of the testator and of
one another.17
The will in question was attested by only two witnesses, Noynay and Grajo. On this
circumstance alone, the will must be considered void.18 This is in consonance with the
rule that acts executed against the provisions of mandatory or prohibitory laws shall
be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary
public by the testator and the witnesses.19 The importance of this requirement is
highlighted by the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision.20
An acknowledgment is the act of one who has executed a deed in going before some
competent officer or court and declaring it to be his act or deed. It involves an extra
step undertaken whereby the signatory actually declares to the notary public that the
same is his or her own free act and deed.21 The acknowledgment in a notarial will has
a two-fold purpose: (1) to safeguard the testators wishes long after his demise and
(2) to assure that his estate is administered in the manner that he intends it to be
done.
A cursory examination of the acknowledgment of the will in question shows that this
particular requirement was neither strictly nor substantially complied with. For one,
there was the conspicuous absence of a notation of the residence certificates of the
notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of

the testators old residence certificate in the same acknowledgment was a clear
breach of the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public.
They are required to certify that the party to every document acknowledged
before him had presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of issue and date as
part of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree
of importance and evidentiary weight attached to notarized documents.23 A notary
public, especially a lawyer,24 is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon
notarization of a document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence
tax. Every contract, deed, or other document acknowledged before a
notary public shall have certified thereon that the parties thereto have
presented their proper [cedula] residence certificate or are exempt from the
[cedula] residence tax, and there shall be entered by the notary public as a
part of such certificate the number, place of issue, and date of each [cedula]
residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax
Act26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any
document before a notary public xxx it shall be the duty of such person xxx
with whom such transaction is had or business done, to require the
exhibition of the residence certificate showing payment of the residence
taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of
residence taxes for the current year. By having allowed decedent to exhibit an expired
residence certificate, respondent failed to comply with the requirements of both the
old Notarial Law and the Residence Tax Act. As much could be said of his failure to
demand the exhibition of the residence certificates of Noynay and Grajo.

On the issue of whether respondent was under the legal obligation to furnish a copy
of the notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witness. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of
Court. (emphasis supplied)
Respondents failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary
entries pertaining to the will in his notarial register. The old Notarial Law required the
entry of the following matters in the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before
him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the
instrument.27
In an effort to prove that he had complied with the abovementioned rule, respondent
contended that he had crossed out a prior entry and entered instead the will of the
decedent. As proof, he presented a photocopy of his notarial register. To reinforce his
claim, he presented a photocopy of a certification28 stating that the archives division
had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that
the original is unavailable. The proponent must first prove the existence and cause of
the unavailability of the original,29 otherwise, the evidence presented will not be
admitted. Thus, the photocopy of respondents notarial register was not admissible as
evidence of the entry of the execution of the will because it failed to comply with the
requirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated

September 21, 199930 must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000;31 its contents did not squarely prove the fact of
entry of the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the
public in the integrity of notarized deeds will be undermined.33
Defects in the observance of the solemnities prescribed by law render the entire will
invalid. This carelessness cannot be taken lightly in view of the importance and
delicate nature of a will, considering that the testator and the witnesses, as in this
case, are no longer alive to identify the instrument and to confirm its
contents.34 Accordingly, respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a consequence of his breach of
duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of duty
on the part of a notary public shall, in the discretion of the proper judge of
first instance, be sufficient ground for the revocation of his commission:
xxx

xxx

xxx

(b) The failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law.
xxx

xxx

xxx

(f) The failure of the notary to make the proper notation regarding cedula
certificates.36
These gross violations of the law also made respondent liable for violation of his oath
as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of
Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the
Philippines, uphold the Constitution and obey the laws of the land.40 For a lawyer is
the servant of the law and belongs to a profession to which society has entrusted the
administration of law and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed
on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should moreover

make himself an example for others to emulate.42 Being a lawyer, he is supposed to

be a model in the community in so far as respect for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction
is imposed on a lawyer upon a finding or acknowledgment that he has engaged in
professional misconduct.45 These sanctions meted out to errant lawyers include
disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in a
number of cases that the power to disbar must be exercised with great caution47 and
should not be decreed if any punishment less severe such as reprimand,
suspension, or fine will accomplish the end desired.48 The rule then is that
disbarment is meted out only in clear cases of misconduct that seriously affect the
standing and character of the lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary
duties of his office. Contrary to his claims that he "exercised his duties as Notary
Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx," we find
that he acted very irresponsibly in notarizing the will in question. Such recklessness
warrants the less severe punishment of suspension from the practice of law. It is, as
well, a sufficient basis for the revocation of his commission50 and his perpetual
disqualification to be commissioned as a notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules
of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4)
Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one
year and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated
Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the
personal records of respondent.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
THIRD DIVISION
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the
will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision2 and the March 7,

2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte and ordering
the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case
be remanded to the court a quo for further and concomitant proceedings."4
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in the
United States until he finally reached retirement. In 1980, Placido finally came home
to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon
St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca
Valmonte and titled in their names in TCT 123468. Two years after his arrival from the
United States and at the age of 80 he wed Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a
little more than two years of wedded bliss, Placido died on October 8, 1984 of a
cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting
of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983.
The first page contains the entire testamentary dispositions and a part of the
attestation clause, and was signed at the end or bottom of that page by the testator
and on the left hand margin by the three instrumental witnesses. The second page
contains the continuation of the attestation clause and the acknowledgment, and was
signed by the witnesses at the end of the attestation clause and again on the left
hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE
LORD AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and
a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of
sound and disposing mind and memory, do hereby declare this to be my last will and
testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the
Catholic Church in accordance with the rites and said Church and that a suitable
monument to be erected and provided my by executrix (wife) to perpetuate my
memory in the minds of my family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one
half (1/2) portion of the follow-described properties, which belongs to me as [coowner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati,
Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of
Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property, made of strong and
mixed materials used as my residence and my wife and located at No. 9200 Catmon
Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482,
Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and
myself as co-owners, share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all
others whatsoever and wherever found, I give, devise and bequeath to my said wife,
Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in
Quezon City, Philippines.
"The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the
USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities and
formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged execution
he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or

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

"The attesting witnesses to the will corroborated the testimony of the notary public,
and testified that the testator went alone to the house of spouses Eugenio and Feliza
Gomez at GSIS Village, Quezon City and requested them to accompany him to the
house of Atty. Floro Sarmiento purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that
they returned on June 15, 1983 for the execution of the will but were asked to come
back instead on August 9, 1983 because of the absence of the notary public; that the
testator executed the will in question in their presence while he was of sound and
disposing mind and that he was strong and in good health; that the contents of the will
was explained by the notary public in the Ilocano and Tagalog dialect and that all of
them as witnesses attested and signed the will in the presence of the testator and of
each other. And that during the execution, the testators wife, Josefina was not with
them.
"The oppositor Leticia declared that Josefina should not inherit alone because aside
from her there are other children from the siblings of Placido who are just as entitled
to inherit from him. She attacked the mental capacity of the testator, declaring that at
the time of the execution of the notarial will the testator was already 83 years old and
was no longer of sound mind. She knew whereof she spoke because in 1983 Placido
lived in the Makati residence and asked Leticias family to live with him and they took
care of him. During that time, the testators physical and mental condition showed
deterioration, aberrations and senility. This was corroborated by her daughter Mary
Jane Ortega for whom Placido took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he evidence adduced,
reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and
attestation of the will; and
2. Mental incapacity of the testator at the time of the execution of the will as he was
then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
probate. The CA upheld the credibility of the notary public and the subscribing
witnesses who had acknowledged the due execution of the will. Moreover, it held that
the testator had testamentary capacity at the time of the execution of the will. It added
that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make
him a person of unsound mind.
Hence, this Petition.7

Issues

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;

Petitioner raises the following issues for our consideration:

"I.
Whether or not the findings of the probate court are entitled to great respect.
"II.
Whether or not the signature of Placido Valmonte in the subject will was procured by
fraud or trickery, and that Placido Valmonte never intended that the instrument should
be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will."8
In short, petitioner assails the CAs allowance of the probate of the will of Placido
Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for
Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however,
the evidence presented during the trial may be examined and the factual matters
resolved by this Court when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court.9
The fact that public policy favors the probate of a will does not necessarily mean that
every will presented for probate should be allowed. The law lays down the procedures
and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the
Civil Code states the instances when a will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;

(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto."
In the present case, petitioner assails the validity of Placido Valmontes will by
imputing fraud in its execution and challenging the testators state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of
the will, but maintains that the circumstances surrounding it are indicative of the
existence of fraud. Particularly, she alleges that respondent, who is the testators wife
and sole beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the
varying dates of the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at the prime of her young
life [to] almost immediately plunge into marriage with a man who [was] thrice her age
x x x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on
the intention of respondent in seeking the probate of the will. Moreover, it supposedly
"defies human reason, logic and common experience"12 for an old man with a severe
psychological condition to have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or pretense,
by which the subject of it is cheated. It may be of such character that the testator is
misled or deceived as to the nature or contents of the document which he executes,
or it may relate to some extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but for the fraud, he would not
have made."13
We stress that the party challenging the will bears the burden of proving the existence
of fraud at the time of its execution.14 The burden to show otherwise shifts to the
proponent of the will only upon a showing of credible evidence of

fraud.15 Unfortunately in this case, other than the self-serving allegations of petitioner,
no evidence of fraud was ever presented.

Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C?

It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.16 That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty years
his junior, as the sole beneficiary; and disregarded petitioner and her family, who were
the ones who had taken "the cudgels of taking care of [the testator] in his twilight
years."17

A On that particular date when it was acknowledged, August 9, 1983.

Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, "because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the
testator and of one another.19 Furthermore, the testator and the witnesses must
acknowledge the will before a notary public.20 In any event, we agree with the CA that
"the variance in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the instrumental
witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25,
1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are
reproduced respectively as follows:

Q Why did you not make the necessary correction on the date appearing on the body
of the document as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in my own
handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in
the acknowledgement it is dated August 9, 1983, will you look at this document and
tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses;
that was first week of June and Atty. Sarmiento told us to return on the 15th of June
but when we returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
A We returned on the 9th of August and there we signed.

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator
and his witnesses were supposed to be in your office?

Q This August 9, 1983 where you said it is there where you signed, who were your
companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

A Yes sir.
Felisa Gomez on cross-examination:
Q On June 15, 1983, did the testator and his witnesses come to your house?
Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when the document
was acknowledged?
A Yes sir.

A The reason why we went there three times is that, the first week of June was out
first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the
last will and testament. After that what they have talked what will be placed in the
testament, what Atty. Sarmiento said was that he will go back on the 15th of June.
When we returned on June 15, Atty. Sarmiento was not there so we were not able to
sign it, the will. That is why, for the third time we went there on August 9 and that was
the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what
transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the
commission of a fraud. There was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are credible evidence of its due
execution.23Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
"Article 798. In order to make a will it is essential that the testator be of sound mind at
the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator,
one month, or less, before making his will was publicly known to be insane, the
person who maintains the validity of the will must prove that the testator made it
during a lucid interval."
According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testators bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we find that the appellate
court was correct in holding that Placido had testamentary capacity at the time of the
execution of his will.
It must be noted that despite his advanced age, he was still able to identify accurately
the kinds of property he owned, the extent of his shares in them and even their
locations. As regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have stated earlier, the omission of some
relatives from the will did not affect its formal validity. There being no showing of fraud
in its execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held
thus:
"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees of mental
aberration generally known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or from age, will not
render a person incapable of making a will; a weak or feebleminded person may
make a valid will, provided he has understanding and memory sufficient to enable him
to know what he is about to do and how or to whom he is disposing of his property. To
constitute a sound and disposing mind, it is not necessary that the mind be unbroken
or unimpaired or unshattered by disease or otherwise. It has been held that
testamentary incapacity does not necessarily require that a person shall actually be
insane or of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of
the Court of Appeals areAFFIRMED. Costs against petitioner.
SO ORDERED.

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 eightpaged 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 eightpaged 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.

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.

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

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he

found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages
21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written
and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The
will is dated "FEB./61 " and states: "This is my win which I want to be respected
although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro
Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter
dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de
Jesus. Both recognized the handwriting of their mother and positively Identified her
signature. They further testified that their deceased mother understood English, the
language in which the holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation
and/or under duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have intended the said Will
to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia
that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated
as required by Article 810 of the Civil Code. She contends that the law requires that
the Will should contain the day, month and year of its execution and that this should
be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order
and disallowed the probate of the holographic Will on the ground that the word
"dated" has generally been held to include the month, day, and year. The dispositive
portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will

of Bibiana Roxas de Jesus, is hereby disallowed for not having
been executed as required by the law. The order of August 24,
1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic
Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article
810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out of
the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article
688 of the Old Civil Code require the testator to state in his holographic Win the "year,
month, and day of its execution," the present Civil Code omitted the phrase Ao mes
y dia and simply requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic
Will is void for non-compliance with Article 810 of the New Civil Code in that the date
must contain the year, month, and day of its execution. The respondent contends that
Article 810 of the Civil Code was patterned after Section 1277 of the California Code
and Section 1588 of the Louisiana Code whose Supreme Courts had consistently
ruled that the required date includes the year, month, and day, and that if any of these
is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the execution of holographic
Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application
of the statutory requirements regarding the due execution of Wills. We should not
overlook the liberal trend of the Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in view
of giving the testator more freedom in expressing his last wishes,
but with sufficien safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to

the formalities in the execution of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27
SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed
in his last will and testament on the ground that any disposition
made by the testator is better than that which the law can make.
For this reason, intestate succession is nothing more than a
disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order
to guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been
executed in substantial compliance with the formalities of the law, and the possibility
of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted
to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record
are to be considered in the application of any given rule. If the
surrounding circumstances point to a regular execution of the wilt
and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should,
in the absence of any suggestion of bad faith, forgery or fraud, lean
towards its admission to probate, although the document may
suffer from some imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose sought to
be accomplished by such requisite is actually attained by the form followed by the
testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as

that of two competing Wills executed on the same day, or of a testator becoming
insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in
a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the holographic
Will of their mother and that she had the testamentary capacity at the time of the
execution of said Will. The objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article 810 of the
Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the holographic
Will of the deceased Bibiana Roxas de Jesus is reinstated.SO ORDERED.
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, petitionersappellants,
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.

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

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 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.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be
the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being
of sound and disposing mind and memory, do hereby declare thus to be my last will
and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable monument to perpetuate my
memory.
xxx xxx xxx

Republic of the Philippines

SUPREME COURT
Manila

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix
as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by the full signature of
the testatrix as required by Article 814 of the Civil Code reading:

FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.

Art. 814. In case of any insertion, cancellation, erasure or alteration

in a holographic will the testator must authenticate the same by his
full signature.
ROSA's position was that the holographic Will, as first written, should be given effect
and probated so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3,
reading in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the
handwriting, the signature, the insertions and/or additions and the
initial were made by one and the same person. Consequently,
Exhibit "C" was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C', should be
admitted to probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed
thru their counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not agree, nor
was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the
Civil Code is applicable to Exhibit "C". Finding the insertions,
alterations and/or additions in Exhibit "C" not to be authenticated by
the full signature of the testatrix Natividad K. Kalaw, the Court will
deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground
that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not theoriginal unaltered text after
subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her
as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will litem not been noted under his signature, ... the Will is

not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined.1 Manresa gave an Identical commentary when he
said "la omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with another,
but which alteration did not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the entire Will is voided or revoked for
the simple reason that nothing remains in the Will after that which could remain valid.
To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given
effect because she failed to authenticate it in the manner required by law by affixing
her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and validity of the Will itself. As it is,
with the erasures, cancellations and alterations made by the testatrix herein, her real
intention cannot be determined with certitude. As Manresa had stated in his
commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la
sentencia que no declara la nulidad de un testamento olografo que
contenga palabras tachadas, enmendadas o entre renglones no
salvadas por el testador bajo su firnia segun previene el parrafo
tercero del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en parrafo aparte
de aquel que determine las condiciones necesarias para la validez
del testamento olografo, ya porque, de admitir lo contrario, se
Ilegaria al absurdo de que pequefias enmiendas no salvadas, que
en nada afectasen a la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto contenido en dicho
parrafo ha de entenderse en perfecta armonia y congruencia con el
art. 26 de la ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma
prevenida, paro no el documento que las contenga, y con mayor
motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna
acerca del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en

este ultimo fallo, es preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras que no afecter4
alteren ni uarien de modo substancial la express voluntad del
testador manifiesta en el documento. Asi lo advierte la sentencia de
29 de Noviembre de 1916, que declara nulo un testamento olografo
por no estar salvada por el testador la enmienda del guarismo
ultimo del ao en que fue extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent
Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of
which reads;
PREMISES CONSIDERED, the questioned decision of November
19, 1988 of the trial court is hereby REVERSED and SET ASIDE,
and the petition for probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch
94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is
the holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia
Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and
was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations
and corrections which were not duly signed by decedent; and, the will was procured
by petitioners through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house
and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could
not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic
will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide
only the question of identity of the will, its due execution and the
testamentary capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
For one, no evidence was presented to show that the will in
question is different from the will actually executed by the testatrix.
The only objections raised by the oppositors . . . are that the will
was not written in the handwriting of the testatrix which properly
refers to the question of its due execution, and not to the question
of identity of will. No other will was alleged to have been executed
by the testatrix other than the will herein presented. Hence, in the
light of the evidence adduced, the identity of the will presented for
probate must be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners,
however, have satisfactorily shown in Court that the holographic will
in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the handwriting of the testatrix
have been presented and have explicitly and categorically identified
the handwriting with which the holographic will in question was
written to be the genuine handwriting and signature of the testatrix.
Given then the aforesaid evidence, the requirement of the law that
the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx

As to the question of the testamentary capacity of the testratix,

(private respondent) Clemente Sand himself has testified in Court
that the testatrix was completely in her sound mind when he visited
her during her birthday celebration in 1981, at or around which time
the holographic will in question was executed by the testatrix. To be
of sound mind, it is sufficient that the testatrix, at the time of making
the will, knew the value of the estate to be disposed of, the
proper object of her bounty, and thecharacter of the testamentary
act . . . The will itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified explicitly. And
considering that she had even written a nursing book which
contained the law and jurisprudence on will and succession, there
is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and
the testamentary capacity of the testatrix has to be resolved in favor
of the allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for
the disallowance of herein holographic will. While it was alleged
that the said will was procured by undue and improper pressure
and influence on the part of the beneficiary or of some other
person, the evidence adduced have not shown any instance where
improper pressure or influence was exerted on the testatrix.
(Private respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e., at or
around the time of her birth anniversary celebration in 1981. It was
also established that she is a very intelligent person and has a mind
of her own. Her independence of character and to some extent, her
sense of superiority, which has been testified to in Court, all show
the unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only refer
to the making of a will and not as to the specific testamentary
provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be
preferred over intestate succession, and the fact that no convincing
grounds were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid will submitted
herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will
was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not comply with Articles
813 and 814 of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
signature and date, such date validates the dispositions preceding
it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either unsigned and undated,
or signed but not dated. It also found that the erasures, alterations and cancellations
made thereon had not been authenticated by decedent.

(2) If the testator was insane, or otherwise

mentally incapable of making a will, at the time of
its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be
his will at the time of affixing his signature
thereto.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any
of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to
make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other person for
his benefit;
(e) If the signature of the testator was procured by fraud or trick,
and he did not intend that the instrument should be his will at the
time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not
been complied with;

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament;
(2) whether said will was executed in accordance with the formalities prescribed by
law; (3) whether the decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the will and its signing were
the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand
was not executed in accordance with the formalities prescribed by law. It held that
Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a will. So
when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and
806 of the New Civil Code.

Art. 678: A will is called holographic when the testator writes it

himself in the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full
age.

In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator
himself, 7 as provided under Article 810 of the New Civil Code, thus:

In order that the will be valid it must be drawn on stamped paper

corresponding to the year of its execution, written in its entirety by
the testator and signed by him, and must contain a statement of the
year, month and day of its execution.

A person may execute a holographic will which must be entirely

written, dated, and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis supplied.)

If it should contain any erased, corrected, or interlined words, the

testator must identify them over his signature.

Failure to strictly observe other formalities will not result in the disallowance
of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding noncompliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132
SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not
been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made
on the date of the holographic will or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of
the Spanish Civil Code, from which the present provisions covering holographic wills
are taken. They read as follows:

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in Articles
813 and 814 of the same Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose
of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass
upon certain provisions of the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran property is in the name
of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by respondent court,
she cannot validly dispose of the whole property, which she shares with her father's
other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the disposition of the entire house and
lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of
Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property. No
costs.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, 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
opposition5 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

(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.

August 30, 1978

(Sgd) Matilde Vda de Ramonal

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal
August 30, 1978

August 30, 1978

Gene and Manuel:
Follow my instruction in order that I will rest peacefully.

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:

Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 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:

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

. . . 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

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

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.

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.

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.

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.

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.

Hence, this petition.

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

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.

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.

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.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?

Matilde Ramonal Binanay, on the other hand, testified that:

A. Yes, sir.

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?

Q. Why do you say so?

A. Collecting rentals.

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

Q. From where?

A. In handwritten.14

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

Vda. De Ramonal.

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

streets.12
xxx

xxx

xxx

xxx

A. Posting records.
A. I sometimes accompany her.
Q. Aside from that?
Q. In collecting rentals does she issue receipts?
A. Carrying letters.
A. Yes, sir.13
Q. Letters of whom?
xxx

xxx
A. Matilde.

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?

xxx

Q. In addition to collection of rentals, posting records of accounts of tenants

and deed of sale which you said what else did you do to acquire familiarity of
the signature of Matilde Vda De Ramonal?

Q. Who sometime accompany her?

xxx

xxx

Q. To whom?

A. To her creditors.15

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

xxx

xxx
A. 1985.17

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?

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.

A. My Aunt.
Q. After taking that document you kept it with you?
Q. Why do you say this is the handwriting of your aunt?
A. I presented it to the fiscal.
A. Because I am familiar with her signature.16
Q. For what purpose?
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.

A. Just to seek advice.

Q. Advice of what?

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. 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.

A. Yes, sir.
In the testimony of Ms. Binanay, the following were established:
Q. Who was in possession of that will?
A. I.

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person
is that correct?

Q. Since when did you have the possession of the will?

A. Yes, sir.

A. It was in my mother's possession.

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?

Q. So, it was not in your possession?

A. Yes, sir.19
A. Sorry, yes.
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. 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

Q. And there is a retracing in the word Vda.?

Evangeline Calugay declared that the holographic will was written, dated and signed
in the handwriting of the testator. She testified that:

A. Yes, sir.20
xxx

xxx

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. 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
xxx

xxx

xxx

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated

Agosto 30, 1978 there is a signature here below item No. 1, will you tell this
court whose signature is this?

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

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

xxx

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.

xxx

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.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Also in exhibit n-3, whose signature is this?
Q. Do you know Matilde Vda de Ramonal?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
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?

xxx

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

xxx

xxx

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. The late husband is Justo Ramonal.24

xxx

xxx

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.

A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.28
xxx

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
xxx

xxx

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.

549 Phil. 908 FIRST DIVISION [ G.R. NO. 174144, April 17, 2007 ] BELLA A.
GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS, RESPONDENT.
DECISION
CORONA, J.: The Scriptures tell the story of the brothers Jacob and Esau[1], siblings
who fought bitterly over the inheritance of their father Isaac's estate. Jurisprudence is
also replete with cases involving acrimonious conflicts between brothers and sisters
over successional rights. This case is no exception. On February 19, 1994, Felisa
Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent
Resurreccion A. Bihis, died at the Metropolitan Hospital in Tondo, Manila. On May 24,
1994, petitioner filed a petition for the probate of the last will and testament of the
decedent in Branch 95[2] of the Regional Trial Court of Quezon City where the case
was docketed as Sp. Proc. No. Q-94-20661. The petition alleged the following:
petitioner was named as executrix in the decedent's will and she was legally qualified
to act as such; the decedent was a citizen of the Philippines at the time of her death;
at the time of the execution of the will, the testatrix was 79 years old, of sound and
disposing mind, not acting under duress, fraud or undue influence and was
capacitated to dispose of her estate by will. Respondent opposed her elder sister's
petition on the following grounds: the will was not executed and attested as required
by law; its attestation clause and acknowledgment did not comply with the
requirements of the law; the signature of the testatrix was procured by fraud and
petitioner and her children procured the will through undue and improper pressure
and influence. In an order dated November 9, 1994, the trial court appointed
petitioner as special administratrix of the decedent's estate. Respondent opposed
petitioner's appointment but subsequently withdrew her opposition. Petitioner took her
oath as temporary special administratrix and letters of special administration were
issued to her. On January 17, 2000, after petitioner presented her evidence,
respondent filed a demurrer thereto alleging that petitioner's evidence failed to
establish that the decedent's will complied with Articles 804 and 805 of the Civil Code.
In a resolution dated July 6, 2001, the trial court denied the probate of the will ruling
that Article 806 of the Civil Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the testatrix's, residence at No.
40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a

commissioned notary public for and in Caloocan City. The dispositive portion of the
resolution read: WHEREFORE, in view of the foregoing, the Court finds, and so
declares that it cannot admit the last will and testament of the late Felisa Tamio de
Buenaventura to probate for the reasons hereinabove discussed and also in
accordance with Article 839 [of the Civil Code] which provides that if the formalities
required by law have not been complied with, the will shall be disallowed. In view
thereof, the Court shall henceforth proceed with intestate succession in regard to the
estate of the deceased Felisa Tamio de Buenaventura in accordance with Article 960
of the [Civil Code], to wit: "Art. 960. Legal or intestate succession takes place: (1) If a
person dies without a will, or with a void will, or one which has subsequently lost its
validity, xxx." SO ORDERED.[3] Petitioner elevated the case to the Court of Appeals
but the appellate court dismissed the appeal and affirmed the resolution of the trial
court.[4] Thus, this petition.[5] Petitioner admits that the will was acknowledged by the
testatrix and the witnesses at the testatrix's residence in Quezon City before Atty.
Directo and that, at that time, Atty. Directo was a commissioned notary public for and
in Caloocan City. She, however, asserts that the fact that the notary public was acting
outside his territorial jurisdiction did not affect the validity of the notarial will. Did the
will "acknowledged" by the testatrix and the instrumental witnesses before a notary
public acting outside the place of his commission satisfy the requirement under Article
806 of the Civil Code? It did not. Article 806 of the Civil Code provides: 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. One of the formalities required by law in
connection with the execution of a notarial will is that it must be acknowledged before
a notary public by the testator and the witnesses.[6] This formal requirement is one of
the indispensable requisites for the validity of a will.[7] In other words, a notarial will
that is not acknowledged before a notary public by the testator and the instrumental
witnesses is void and cannot be accepted for probate. An acknowledgment is the act
of one who has executed a deed in going before some competent officer and
declaring it to be his act or deed.[8] In the case of a notarial will, that competent
officer is the notary public. The acknowledgment of a notarial will coerces the testator
and the instrumental witnesses to declare before an officer of the law, the notary
public, that they executed and subscribed to the will as their own free act or deed.[9]
Such declaration is under oath and under pain of perjury, thus paving the way for the
criminal prosecution of persons who participate in the execution of spurious wills, or
those executed without the free consent of the testator.[10] It also provides a further
degree of assurance that the testator is of a certain mindset in making the
testamentary dispositions to the persons instituted as heirs or designated as devisees
or legatees in the will.[11] Acknowledgment can only be made before a competent
officer, that is, a lawyer duly commissioned as a notary public. In this connection, the
relevant provisions of the Notarial Law provide: SECTION 237. Form of commission
for notary public. -The appointment of a notary public shall be in writing, signed by the
judge, and substantially in the following form: GOVERNMENT OF THE REPUBLIC
OF THE PHILIPPINES PROVINCE OF ___________ This is to certify that
____________, of the municipality of ________ in said province, was on the ___ day
of __________, anno Domini nineteen hundred and _______, appointed by me a
notary public, within and for the said province, for the term ending on the first day of
January, anno Domini nineteen hundred and _____. _________________ Judge of

the Court of irst Instance[12] of said Province xxx xxx xxx SECTION 240. Territorial
jurisdiction. - The jurisdiction of a notary public in a province shall be co-extensive
with the province. The jurisdiction of a notary public in the City of Manila shall be coextensive with said city. No notary shall possess authority to do any notarial act
beyond the limits of his jurisdiction. (emphases supplied) A notary public's
commission is the grant of authority in his favor to perform notarial acts.[13] It is
issued "within and for" a particular territorial jurisdiction and the notary public's
authority is co-extensive with it. In other words, a notary public is authorized to
perform notarial acts, including the taking of acknowledgments, within that territorial
jurisdiction only. Outside the place of his commission, he is bereft of power to perform
any notarial act; he is not a notary public. Any notarial act outside the limits of his
jurisdiction has no force and effect. As this Court categorically pronounced in Tecson
v. Tecson:[14] An acknowledgment taken outside the territorial limits of the officer's
jurisdiction is void as if the person taking it ware wholly without official character.
(emphasis supplied) Since Atty. Directo was not a commissioned notary public for and
in Quezon City, he lacked the authority to take the acknowledgment of the testatrix
and the instrumental witnesses. In the same vein, the testatrix and her witnesses
could not have validly acknowledged the will before him. Thus, Felisa Tamio de
Buenaventura's last will and testament was, in effect, not acknowledged as required
by law. Moreover, Article 5 of the Civil Code provides: ART. 5. Acts executed against
the provisions of mandatory or prohibitory laws shall be void, except when the law
itself authorizes their validity. The violation of a mandatory or a prohibitory statute
renders the act illegal and void unless the law itself declares its continuing validity.
Here, mandatory and prohibitory statutes were transgressed in the execution of the
alleged "acknowledgment." The compulsory language of Article 806 of the Civil Code
was not complied with and the interdiction of Article 240 of the Notarial Law was
breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all
completely void. The Court cannot turn a blind eye to Atty. Directo's participation in
the preparation, execution and unlawful "acknowledgment" of Felisa Tamio de
Buenaventura's will. Had he exercised his notarial commission properly, the intent of
the law to effectuate the decedent's final statements[15] as expressed in her will
would not have come to naught.[16] Hence, Atty. Directo should show cause why he
should not be administratively sanctioned as a member of the bar and as an officer of
the court. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. Let
a copy of this decision be furnished the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and recommendation on the
possible misconduct of Atty. Macario O. Directo. SO ORDERED. Puno, C.J.,
(Chairperson), Sandoval-Gutierrez, Azcuna and Garcia, 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.