h) Acknowledge before a notary public

Guerrero vs Bihis G.R. No. 174144 April 17, 2007

Art. 808- If testator is blind

Facts:

[G.R. No. L-26615. April 30, 1970.]

Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero andrespondent

Resurreccion A. Bihis, died. Guerrero filed for probate. Respondent Bihis opposed her
elder sisters petition on the following grounds: the will was not executed and attested as
required by law; itsattestation clause and acknowledgment did not comply with the
requirementsof the law; the signature of the testatrix was procured by fraud and
petitioner and her children procured the will through undue and improper pressure
andinfluence. The trial court denied the probate of the will ruling that Article 806 of the Civil
Code was not complied with because the will was acknowledged bythe testatrix and the
witnesses at the testatrixs residence at Quezon City before Atty. Macario O. Directo who
was a commissioned notary public in Caloocan City.

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch and CONSUELO GONZALES VDA. DE PRECILLA,Respondents.

Issue:
Whether or not the will acknowledged by the testatrix and the instrumental witnesses
before a notary public acting outside the place of his commission satisfy therequirement
under Article 806 of the Civil Code?
Ruling:
No. One of the formalities required by law in connection with the execution of a notarial will
is that it must be acknowledged before a notary public by thetestator and the witnesses.
This formal requirement is one of theindispensable requisites for the validity of a will. In
other words, a notarial will that is not acknowledged before a notary public by the testator
and the instrumental witnesses is void and cannot be accepted for probate.The Notarial
law provides: SECTION 240.Territorial jurisdiction.

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

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR

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

1 | SUCCESSION

ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO

DISCHARGE THE TRUST; CASE AT BAR. Considering that the alleged deed of sale
was executed when Gliceria del Rosario was already practically blind and that the
consideration given seems unconscionably small for the properties, there was likelihood
that a case for annulment might be filed against the estate or heirs of Alfonso Precilla. And
the administratrix being the widow and heir of the alleged transferee, cannot be expected
to sue herself in an action to recover property that may turn out to belong to the estate.
This, plus her conduct in securing new copies of the owners duplicate of titles without the
courts knowledge and authority and having the contract bind the land through issuance of
new titles in her husbands name, cannot but expose her to the charge of unfitness or
unsuitability to discharge the trust, justifying her removal from the administration of the
estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE
OR THE RIGHT OF POSSESSION OF REAL PROPERTY." On the matter of lis
pendens, the provisions of the Rules of Court are clear: notice of the pendency of an action
may be recorded in the office of the register of deeds of the province in which the property
is situated, if the action affects "the title or the right of possession of (such) real
property."cralaw virtua1aw library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy here is
simply the fitness or unfitness of said special administratrix to continue holding the trust, it
does not involve or affect at all the title to, or possession of, the properties covered by TCT
Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an
action that can properly be annotated in the record of the titles to the properties.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in
Sp. Proc. No. 62618) admitting to probate the alleged last will an, testament of the late
Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are
separate petitions for mandamus filed by certain alleged heirs of said decedent seeking (1)
to compel the probate court to remove Consuelo S. Gonzales-Precilla as special
administratrix of the estate, for conflict of interest, to appoint a new one in her stead; and
(2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT Nos.
81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to Consuelo
Gonzales y Narciso, and said to be properly belonging to the estate of the deceased
Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated
as follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965,
leaving no descendents, ascendants, brother or sister. At the time of her death, she was
said to be 90 years old more or less, and possessed of an estate consisting mostly of real

2 | SUCCESSION

properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased,
petitioned the Court of First Instance of Manila for probate of the alleged last will and
testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her
appointment as special administratrix of the latters estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio
V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June
1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960
wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and
legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all
surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala
Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and
Delfin, surnamed Mauricio, the latter five groups of persons all claiming to be relatives
of Doa Gliceria within the fifth civil degree. The oppositions invariably charged that the
instrument executed in 1960 was not intended by the deceased to be her true will; that the
signatures of the deceased appearing in the will was procured through undue and
improper pressure and influence the part of the beneficiaries and/or other persons; that the
testatrix did not know the object of her bounty; that the instrument itself reveals
irregularities in its execution, and that the formalities required by law for such execution
have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased,
joined the group of Dr. Jaime Rosario in registering opposition to the appointment of
petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground
that the latter possesses interest adverse to the estate. After the parties were duly heard,
the probate court, in its order of 2 October 1965, granted petitioners prayer and appointed
her special administratrix of the estate upon a bond for P30,000.00. The order was
premised on the fact the petitioner was managing the properties belonging to the estate
even during the lifetime of the deceased, and to appoint another person as administrator or
co administrator at that stage of the proceeding would only result in further confusion and
difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an
urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals made
against the funds of the deceased after 2 September 1965. The court denied this motion
on 22 October 1965 for being premature, it being unaware that such deposit in the name of
the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children,
Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court
for the immediate removal of the special administratrix. It was their claim that the special
administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del
Rosario to execute a simulated and fraudulent deed of absolute sale dated 10 January
1961 allegedly conveying unto said spouses for the paltry sum of P30,000.00 ownership of
3 parcels of land and the improvements thereon located on Quiapo and San Nicolas,
Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is
the duty of the administrator to protect and conserve the properties of the estate, and it
may become necessary that, an action for the annulment of the deed of sale land for

recovery of the aforementioned parcels of land be filed against the special administratrix,
as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the
Special Administratrix to deposit with the Clerk of Court all certificates of title belonging to
the estate. It was alleged that on 22 October 1965, or after her appointment, petitioner
Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate
of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance
of Manila a motion for the issuance of new copies of the owners duplicates of certain
certificates of title in the name of Gliceria del Rosario, supposedly needed by her "in the
preparation of the inventory" of the properties constituting the estate. The motion having
been granted, new copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued
on 15 November 1965. On 8 December 1965, according to the oppositors, the same
special administratrix presented to the Register of Deeds the deed of sale involving
properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria
del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new certificates (Nos. 81735, 81736 and 81737)
were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria
A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court
took note that no evidence had been presented to establish that the testatrix was not of
sound mind when the will was executed; that the fact that she had prepared an earlier will
did not, prevent her from executing another one thereafter; that the fact that the 1956 will
consisted of 12 pages whereas the 1960 testament was contained in one page does not
render the latter invalid; that, the erasures and alterations in the instrument were
insignificant to warrant rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors are even indicative of their
truthfulness. The probate court, also considering that petitioner had already shown
capacity to administer the properties of the estate and that from the provisions of the will
she stands as the person most concerned and interested therein, appointed said petitioner
regular administratrix with a bond for P50,000.00. From this order all the oppositors
appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion of 14
December 1965 for the removal of the then special administratrix, as
follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the special administratrix
and to appoint another one in her stead, is in order that an action may be filed against the
special administratrix for the annulment of the deed of sale executed by the decedent on
January 10, 1961. Under existing documents, the properties sold pursuant to the said deed
of absolute sale no longer forms part of the estate. The alleged conflict of interest is
accordingly not between different claimants of the same estate. If it is desired by the
movants that an action be filed by them to annul the aforesaid deed absolute sale, it is not
necessary that the special administratrix be removed and that another one be appointed to
file such action. Such a course of action would only produce confusion and difficulties in
the settlement of the estate. The movants may file the aforesaid proceedings, preferably in
an independent action, to secure the nullity of the deed of absolute even without leave of
this court:"

3 | SUCCESSION

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in
the name of the decedent, the same was also denied, for the reason that if the movants
were referring to the old titles, they could no longer be produced, and if they meant the
new duplicate copies thereof that were issued at the instance of the special administratrix,
there would be no necessity therefor, because they were already cancelled and other
certificates were issued in the name of Alfonso Precilla. This order precipitated the
oppositors filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio
V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course
on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors
requested the Register of Deeds of Manila to annotate a notice of lis pendens in the
records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when
said official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for
an order to compel the Register of Deeds to annotate a lis pendens notice in the
aforementioned titles contending that the matter of removal and appointment of the
administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the
Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed another
mandamus action, this time against the probate court and the Register of Deeds. The case
was docketed and given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order
allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A.
del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12
pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary
public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written
in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco
Lopez and acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena,
Lopez and Rosales uniformly declared that they were individually requested by Alfonso
Precilla (the late husband of petitioner special administratrix) to witness the execution of
the last will of Doa Gliceria A. del Rosario; that they arrived at the house of the old lady at
No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960;
that the testatrix at the time was apparently of clear and sound mind, although she was
being aided by Precilla when she walked; 3 that the will, which was already prepared, was
first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses
thereafter signed the will in the presence of the testatrix and the notary public and of one
another. There is also testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed, the notary public asked
for their respective residence certificates which were handed to him by Alfonso Precilla,
clipped together; 5 that after comparing them with the numbers already written on the will,
the notary public filled in the blanks in the instrument with the date, 29 January 1960,
before he affixed his signature and seal thereto. 6 They also testified that on that occasion
no pressure or influence has been exerted by any person upon the testatrix to execute the
will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960
will are evident from the records. The will appeared to have been prepared by one who is
not conversant with the spelling of Tagalog words, and it has been shown that Alfonso
Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the
will, two of whom are fellow Visayans, 8 admitted their relationship or closeness to Precilla.
9 It was Precilla who instructed them to go to the house of Gliceria del Rosario on 29
December 1960 to witness an important document, 10 and who took their residence
certificates from them a few days before the will was signed. 11 Precilla had met the notary
public and witnesses Rosales and Lopez at the door of the residence of the old woman; he
ushered them to the room at the second floor where the signing of the document took
place; 12 then he fetched witness Decena from the latters haberdashery shop a few doors
away and brought him to, the house the testatrix. 13 And when the will was actually
executed Precilla was present. 14

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

"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye which I prescribed
the eye which I operated she could see only forms but not read. That is on the left eye.

The oppositors-appellants in the present case, however, challenging the correctness of the
probate courts ruling, maintain that on 29 December 1960 the eyesight of Gliceria del
Rosario was so poor and defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales.

"Q How about the right eye?

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and
illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified,
among other things, that when Doa Gliceria del Rosario saw him for consultation on 11
March 1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above
normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16
As to the conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965
certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under
medical supervision up to 1963 with apparently good vision", the doctor had this to
say:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B,
3-C and 3-D from which you could inform the court as to the condition of the vision of the
patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by
myself which showed that the right eye with my prescription of glasses had a vision of 2
over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).
"Q In laymans language, Doctor, what is the significance of that notation that the right had
a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a minimum
distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance sight, not for
near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of the decedent
at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her
vision was only "counting fingers," 17 at five feet. The cross-examination of the doctor
further elicited the following responses:jgc:chanrobles.com.ph

4 | SUCCESSION

"A The same, although the vision on the right eye is even better than the left eye." (pages
34. 85. t.s.n., hearing of 23 March 1966).

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

"Q What about the vision in the right eve, was that corrected by the glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical
record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore,
has first hand knowledge of the actual condition of her eyesight from August, 1960 up to
1963, fully establish the fact that notwithstanding the operation and removal of the cataract
in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision
remained mainly for viewing distant objects and not for reading print. Thus, the conclusion

is inescapable that with the condition of her eyesight in August, 1960, and there is no
evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f
reading, and could not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated that she read the
instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the
will, Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions,
the attestation clause and acknowledgment were crammed together into a single sheet of
paper, to much so that the words had to be written very close on the top, bottom and two
sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the
symbol" &", apparently to save on space. Plainly, the testament was not prepared with any
regard for the defective vision of Doa Gliceria. Further, typographical errors like "HULINH"
for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES",
"instrumental" for "Instrumental", and "acknowledged" for "acknowledge, remained
uncorrected, thereby indicating that execution thereof must have been characterized by
haste. It is difficult to understand that so important a document containing the final
disposition of ones worldly possessions should be embodied in an informal and untidily
written instrument; or that the glaring spelling errors should have escaped her notice if she
had actually retained the ability to read the purported will and had done so. The record is
thus convincing that the supposed testatrix could not have physically read or understood
the alleged testament, Exhibit "D", and that its admission to probate was erroneous and
should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and
attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D",
as appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she was
able to read a closely typed page, since the acts shown do not require vision at close
range. It must be remembered that with the natural lenses removed, her eyes had lost the
power of adjustment to near vision, the substituted glass lenses being rigid and
uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or signing of ones name,
when sufficiently practiced, becomes automatic, so that one need only to have a rough
indication of the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", et
seq., reinforces the contention of oppositors that the alleged testatrix could not see at
normal reading distance: the signatures in the checks are written far above the printed
base, lines, and the names of the payees as well as the amounts written do not appear to
be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand
than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario
was, as appellant oppositors contend, not unlike a blind testator, and the due execution of
her will would have required observance of the provisions of Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged."cralaw virtua1aw library
The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions

5 | SUCCESSION

thereof known to him, so that he may be able to object if they are not in accordance with
his wishes. That the aim of the law is to insure that the dispositions of the will are properly
communicated to and understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the will should be read to the
latter, not only once but twice, by two different persons, and that the witnesses have to act
within the range of his (the testators) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the
above requisites have been complied with. Clearly, as already stated, the 1960 will sought
to be probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial
by the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla
as special administratrix of the estate of the deceased Doa Gliceria (Petition, G.R. No. L26615, Annex "B").
The oppositors petition was based allegedly on the existence in the special administratrix
of an interest adverse to that of the estate. It was their contention that through fraud her
husband had caused the deceased Gliceria del Rosario to execute a deed of sale, dated
10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D.
Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and
the improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P",
Petition) reasoned out that since the properties were already sold no longer form part of
the estate. The conflict of interest would not be between the estate and third parties, but
among the different claimants of said properties, in which case, according to the court, the
participation of the special administratrix in the action for annulment that may be brought
would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was
precisely the validity of the conveyance or sale of the properties. In short, if proper, the
action for annulment would have to be undertaken on behalf of the estate by the special
administratrix, affecting as it does the property or rights of the deceased. 20 For the rule is
that only where there is no special proceeding for the settlement of the estate of the
deceased may the legal heirs commence an action arising out of a right belonging to their
ancestor. 21
There is no doubt that to settle the question of the due execution and validity of the deed of
sale, an ordinary and separate action would have to be instituted, the matter not falling
within the competence of the probate court. 22 Considering the facts then before it, i.e., the
alleged deed of sale having been executed by Gliceria del Rosario on 10 January 1961,
when she was already practically blind; and that the consideration of P30,000.00 seems to
be unconscionably small for properties with a total assessed value of P334,050.00, there
was likelihood that a case for annulment might indeed be filed against the estate or heirs of
Alfonso Precilla. And the administratrix, being the widow and heir of the alleged transferee,
cannot be expected to sue herself in an action to recover property that may turn out to
belong to the estate. 22 Not only this, but the conduct of the special administratrix in
securing new copies of the owners duplicates of TCT Nos. 66201, 66202, and 66204,
without the courts knowledge or authority, and on the pretext that she needed them in the
preparation of the inventory of the estate, when she must have already known by then that

the properties covered therein were already "conveyed" to her husband by the deceased,
being the latters successor, and having the contract bind the land through issuance of new
titles in her husbands name cannot but expose her to the charge of unfitness or
unsuitableness to discharge the trust, justifying her removal from the administration of the
estate.
With respect to the orders of the court a quo denying (1) the oppositors motion to require
the Hongkong and Shanghai Bank to report all withdrawals made against the funds of the
deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens notice
on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not
have taken action on the complaint against the alleged withdrawals from the bank deposits
of the deceased, because as of that time the court had not yet been apprised that such
deposits exist. Furthermore, as explained by the special administratrix in her pleading of 30
October 1965, the withdrawals referred to by the oppositors could be those covered by
checks issued in the name of Gliceria del Rosario during her lifetime but cleared only after
her death. That explanation, which not only appears plausible but has not been rebutted by
the petitioners-oppositors, negates any charge of grave abuse in connection with the
issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are
clear: notice of the pendency of an action may be recorded in the office of the register of
deeds of the province in which the property is situated, if the action affects "the title or the
right of possession of (such) real property." 23 In the case at bar, the pending action which
oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L-26615). As previously discussed in
this opinion, however, that case is concerned merely with the correctness of the denial by
the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in
controversy there is simply the fitness or unfitness of said special administratrix to continue
holding the trust; it does not involve or affect at all the title to, or possession of, the
properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of
such case (L-26615) is not an action that can properly be annotated in the record of the
titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the
alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in
G.R. No. L-26615 being meritorious, the appealed order is set aside and the court below is
ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint
one of the heirs intestate of the deceased Doa Gliceria Avelino del Rosario as special
administrator for the purpose of instituting action on behalf of her estate to recover the
properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L26864, petition is dismissed. No costs.

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,
6Intermediate
| S U C C Appellate
E S S I OCourt,
N First Division (Civil Cases), and BAYANI MA.
RINO, respondents

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

pressure and influence on the part of the beneficiary who stands to get the lion's share of
the testator's estate; and lastly, that the signature of the testator was procured by fraud or
trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made
to respondent court. The main thrust of the appeal was that the deceased was blind within
the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was
executed; that since the reading required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil should have been denied.

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.

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.

7 | SUCCESSION

Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to
do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of
the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when
he is illiterate), is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his
wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido
Alvarado was incapable of reading the final drafts of his will and codicil on the separate
occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be
no other course for us but to conclude that Brigido Alvarado comes within the scope of the
term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way
of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably
with his instructions. Hence, to consider his will as validly executed and entitled to probate,
it is essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him an opportunity to
object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged
will and the five-paged codicil who read the same aloud to the testator, and read them only
once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains that
the only valid compliance or compliance to the letter and since it is admitted that neither
the notary public nor an instrumental witness read the contents of the will and codicil to
Brigido, probate of the latter's will and codicil should have been disallowed.

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:

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

8 | SUCCESSION

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.

Art. 809- Defects and imperfections in the form and language of attestation
G.R. No. L-21151
February 25, 1924
In re will of Antonio Vergel de Dios, deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.

ROMUALDEZ, J.:
The question in this case is as to the validity of the document Exhibit A as a will, which was
propounded by Ramon J. Fernandez for probate, and contested by Fernando Vergel de
Dios and Francisco, Ricardo and Virgilio Rustia, the court of First Instance of Manila
having denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court in holding
the attestation fatally defective and in not finding Act No. 2645 void.
The defects attributed to the will by the contestants are as follows, to wit:
(a) It was not sufficiently proven that the testator knew the contents of the will.

the will proper, although he did not sign the page containing the attestation clause; that
while he did not personally call the witnesses, yet the latter were invited by Attorney Lopez
Lizo to act as such in his presence. The law does not require that the testator precisely be
the person to request the witnesses to attest his will. It was also sufficiently established in
the record, beside being stated in the attestation clause, that the testator signed the will in
the presence of the three witnesses and that the latter, in turn, signed it in the presence of
the testator and of each other, the testator knowing that the witnesses were signing his will;
that the witnesses signed the attestation clause before the death of the testator; that this
clause, with the names of the witnesses in blank, was prepared before the testator signed
the will, and that the sheet containing said clause, just as those of the will proper, was a
loose sheet, and that all the four sheets of which the will Exhibit A was actually composed
were kept together and are the very ones presented in this case; and finally, that the
signatures of the testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those mentioned by the
opponents, and it having been proven that the testator executed said will in a language
known by him and consciously, freely and spontaneously, it would seen unnecessary to go
further, and the matter might be brought to a close right here, by holding the will in question
valid and allowable to probate, were it not for the fact that the trial court and the opponents
questioned the sufficiency and validity of the attestation clause because the sheet on
which it is written is not numbered, and it is not stated there that the testator signed on the
margin of each sheet of the will in the presence of the three witnesses, or that the latter
signed it is the presence of the testator and of each other, and specially because said
attestation clause is not signed by the testator either at the margin or the bottom thereof.

(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the testator, or of each other,
nor with knowledge on the part of the testator that they were signing his will.
(f ) The witnesses did not sign the attestation clause before the death of the
testator.
(g) This clause was written after the execution of the dispositive part of the will
and was attached to the will after the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are not authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the testator,
the latter's mind was perfectly sane and he understood it: that he signed all the pages of

9 | SUCCESSION

As to the numbering of the sheet containing the attestation clause, it is true that it does not
appeal on the upper part of the sheet, but it does not appear in its text, the pertinent part of
which is copied hereinafter, with the words, having reference to the number of sheets of
the will, underscored, including the page number of the attestation:
* * * We certify that the foregoing document written in Spanish, a language known
by the testator Antonino Vergel de Dios, consisting of three sheet actually used,
correlatively enumerated, besides this sheet . . . .
If, as stated in this clause, the foregoing document consists of three sheets, besides that of
the clause itself, which is in singular, it is clear that such a sheet of the attestation clause is
the fourth and that the will, including said sheet, has four sheets. This description
contained in the clause in question constitutes substantial compliance with the
requirements prescribed by the law regarding the paging. So it was held by this Court in
the case ofAbangan vs. Abangan (40 Phil., 476), where the sheet containing the
attestation, as well as the preceding one, was also not paged. Furthermore the law, as we
shall see later on, does not require that the sheet containing nothing but the attestation
clause, wholly or in part, be numbered or paged. Consequently this lack of paging on the
attestation sheet does not take anything from the validity of the will.

Turning now to the question whether or not in this clause it is stated that the testator
signed on the margin of each sheet of the will, in the presence of the witnesses and the
latter in the presence of each other, let us see what is said in said clause on this point, and
to this end its pertinent part is hereinafter transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the aforesaid will in our
presence and we at his request did the same in his presence and in that of each
other as witnesses to the will, and lastly, the testator, as well as we, as witnesses,
signed in the same manner on the left margin of each sheet. (Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant case mean, and it in
fact means nothing, but that the testator and the witnesses signed on the left margin of
each sheet of the will "in the same manner" in which they signed at the bottom thereof, that
is, the testator in the presence of the witnesses and the latter in the presence of the
testator and of each other. This phrase in the same manner cannot, in view of the context
of the pertinent part, refer to another thing, and was used here as a suppletory phrase to
include everything and avoid the repetition of a long and difficult one, such as what is
meant by it. The same section 618 of the Code of Civil Procedure, in order to avoid the
repetition of the same long phrase about the testator having signed in the presence of the
witnesses and the latter in the presence of each other, resorts to a similar expression in the
second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet containing
the attestation clause, this point was already decided in the above cited case of Abangan
vs. Abangan, where this court held that:
The testator's signature is not necessary in the attestation clause because this,
as its name implies, appertains only to the witnesses and not to the testator.
In that case of Abangan vs. Abangan it was held that the signature of the testator is not
necessary in the attestation clause, but the theory is not announced that such a clause is
unnecessary to the validity to the will.
For this reason such doctrine does not annul the judgment in the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among others, was laid down
that the attestation clause is necessary to the validity of the will. One of the points on which
greatest stress was laid in that case Uy Coque is that the requirements of the law
regarding the number of the pages used, the signing of the will and of each of its pages by
the testator in the presence of three witnesses, and the attestation and signing of the will
and of each of its pages by the witnesses in the presence of each other cannot be
proven aliunde but by the attestation clause itself which must express the complaince of
the will with such requirements. But it was not held in that case of Uy Coque that the

10 | S U C C E S S I O N

signature of the testator was necessary in the attestation clause, nor was such point
discussed there, which was the point at issue in the case of Abangan vs. Abangan, supra.
The appellees, however, argue that such clause in the case of Abangan vs.
Abangan begins at the bottom and on the same sheet in which the testamentary provision
terminated, that is to say, the will properly speaking. Even then if it is intended to commit
misrepresentation or fraud, which are the things that with the requirements of the law for
the making and attesting of wills it is intended to avoid, it is just the same that the clause;
as in the case ofAbangan vs. Abangan, begins at the bottom of the will properly speaking,
as, like the case before us, it is wholly contained in a separate sheet. The fact is that this
separate sheet, containing the attestation clause wholly or in part, is not signed any place
by the testator in the case of Abangan vs. Abangan, as it is not in the present case.
Section 618 of the code of Civil Procedure, as amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in general terms the requirements to be met by a
will executed after said Code took effect, to wit, that the language or dialect in which it is
written be known by the testator, that it be signed by the latter or by another person in the
name of the testator by his express direction and in his presence, and that it be attested
and signed by three or more credible witnesses in the presence of the testator and of each
other.
These general rules are amplified in the next two paragraphs as to the special
requirements for the execution of the will by the testator and the signing thereof by the
witnesses, with which the second paragraph of the section deals, and as to the attestation
clause treated in the third and last paragraph of said section 618.
For this reason the second paragraph of this section 618 says:
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, on the left margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will properly speaking,
without any reference whatsoever to the attestation clause not treated in this second
paragraph. It is in this second paragraph which deals only with the will (without including
the attestation clause), that the signature or name of the testator and those of the
witnesses are mentioned as necessary on the left margin of each and everyone of the
sheets of the will (not of the attestation clause), as well as the paging of said sheet (of the
will, and not of the attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary in the
attestation clause? Let us see the last paragraph of this section 618 of the Code which

already deals with the requirements for the attestation clause. This last paragraph reads
thus:

The fact that in said clause the signature of the testator does not appear does not affect its
validity, for, as above stated, the law does not require that it be signed by the testator.

The attestation shall state 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.

We find no merit in the assignment of error raising the question as to the validity of Act No.
2645, which is valid. For the purposes of this decision, it is not necessary to reason out this
conclusion, it being sufficient for the adjudication of this case to hold the first error
assigned by the appellants to have been demonstrated.

As may be seen this last paragraph refers to the contents of the text of the attestation, not
the requirements or signatures thereof outside of its text. It does not require that the
attestation be signed by the testator or that the page or sheet containing it be numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a complement, without
which it cannot be probate and with which only not aliunde (Uy Coque vs. Navas
L. Sioca , supra) may the requirements to be stated in its text be proven. The
attestation clause must be prepared and signed, as in the instant case, on the
same occasion on which the will is prepared and signed, in such a way that the
possibility of fraud, deceit or suppression of the will or the attestation clause be
reduced to a minimum; which possibility always exists, as experience shows, in
spite of the many precautions taken by the legislator to insure the true and free
expression of one's last will.
Second. That the will is distinct and different from the attestation, although both
are necessary to the validity of the will, similar, in our opinion, to
a document which is not public so long as it is not acknowledged before a notary,
the document being a distinct and different thing from the acknowledgment, each
of which must comply with different requisites, among which is the signature of
the maker which is necessary in the document but not in the acknowledgment
and both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in the second
paragraph of section 618 of the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance with the
requirements prescribed for the will.
In the case at bar the attestation clause in question states that the requirements prescribed
for the will were complied with, and this is enough for it, as such attestation clause, to be
held as meeting the requirements prescribed by the law for it.

11 | S U C C E S S I O N

The foregoing conclusions lead us to hold, as we do here by hold, that the documents
Exhibit A, as the last will and testament of the deceased Antonio Vergel de Dios, meets all
the requirements prescribed by the low now in force and therefore it must be allowed to
probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court proceed
with the probate of the will Exhibit A in accordance with law, without express
pronouncement as to costs. So ordered.

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
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

12 | S U C C E S S I O N

On April 5, 1988, the probate court rendered a decision declaring the will in question as the
last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit "C" examined by a handwriting expert of the NBI
but it would seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit "C", nothing
came out of it because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question
is null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing
the will in their presence and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question
may be considered as having substantialy complied with the
requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is "we do
certify that the testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will consisting of
THREE PAGES, including the acknowledgment, each page numbered
correlatively in letters of the upper part of each page, as his Last Will
and Testament, and he has signed the same and every page thereof,

on the spaces provided for his signature and on the left hand margin in
the presence of the said testator and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and
of one another. Or as the language of the law would have it that the
testator signed the will "in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another." If not
completely or ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial compliance with the
requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the
same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a manner
not in accord with the law and settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with
the formalities prescribed by law, to control to a certain degree the disposition of his estate
after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute. 14 the first kind is the ordinary or attested will, the execution of which is governed
by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.

13 | S U C C E S S I O N

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:

14 | S U C C E S S I O N

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:

15 | S U C C E S S I O N

. . . 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

16 | S U C C E S S I O N

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.

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 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 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."

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

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

17 | S U C C E S S I O N

except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last
Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In
the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly
proceed with the settlement of the estate of the said decedent.

Art. 810- Holographic Will

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.
GUTIERREZ, JR., J.:

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.

The antecedent facts which led to the filing of this petition are undisputed.

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.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.

On 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:

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.

WHEREFORE, the document purporting to be the holographic Will of

Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is
hereby set aside.

This 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.

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

18 | S U C C E S S I O N

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:

19 | S U C C E S S I O N

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.

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
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.

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 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.

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE

PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and
II

20 | S U C C E S S I O N

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.

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
LATE
MELECIO
LABRADOR
BY ATTY. FIDENCIO L. FERNANDEZ

THE
WILL
WRITTEN
IN

OF
THE
ILOCANO

I First Page
This is also where it appears in writing of the place which is assigned and shared
or the partition in favor of SAGRADO LABRADOR which is the fishpond located
and known place as Tagale.
And this place that is given as the share to him, there is a measurement of more
or less one hectare, and the boundary at the South is the property and
assignment share of ENRICA LABRADOR, also their sister, and the boundary in
the West is the sea, known as the SEA as it is, and the boundary on the NORTH
is assignment belonging to CRISTOBAL LABRADOR, who likewise is also their
brother. That because it is now the time for me being now ninety three (93) years,
then I feel it is the right time for me to partition the fishponds which were and had
been bought or acquired by us, meaning with their two mothers, hence there
shall be no differences among themselves, those among brothers and sisters, for
it is I myself their father who am making the apportionment and delivering to each
and everyone of them the said portion and assignment so that there shall not be
any cause of troubles or differences among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the
month of March, 17th day, in the year 1968, and this decision and or instruction
of mine is the matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that
should be followed and complied with in order that any differences or troubles
may be forestalled and nothing will happen along these troubles among my
children, and that they will be in good relations among themselves, brothers and
sisters;
And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of Bayog, it is

21 | S U C C E S S I O N

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.

On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the
RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos as
special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as the
administrator of the estate of Segundo because she is a certified public accountant; and, 4)
Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In view of the purported holographic will,
petitioners averred that in the event the decedent is found to have left a will, the intestate
proceedings are to be automatically suspended and replaced by the proceedings for the
probate of the will.

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).

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as
SP. Proc. No. 9993396, was filed by petitioners before the RTC. They likewise reiterated
that the probate proceedings should take precedence over SP. Proc. No. 9890870
because testate proceedings take precedence and enjoy priority over intestate
proceedings.[2]

The document that petitioners refer to as Segundos holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana

DY YIENG SEANGIO, G.R. Nos. 140371-72

BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners, Present:
versus - SANDOVAL-GUTIERREZ,

Tantunin ng sinuman

CORONA
AZCUNA, and
HON. AMOR A. REYES, in her GARCIA, JJ.
capacity as Presiding Judge,
DECISION
AZCUNA, J.:
This is a petition for certiorari[1] with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the ground of preterition, in the
consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio,
et al. and In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng
Seangio, Barbara D. Seangio and Virginia Seangio.
The facts of the cases are as follows:

22 | S U C C E S S I O N

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A

Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahatat anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay
naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong
kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan
para makapagutang na kuarta siya at kanya asawa na si Merna de los
Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na
mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko
at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko
at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod

ng Manila sa harap ng tatlong saksi. [3]
(signed)
Seg
undo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No.
9993396 were consolidated.[4]
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings[5] primarily on the ground that the document purporting to be the holographic
will of Segundo does not contain any disposition of the estate of the deceased and thus
does not meet the definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of disinheritance by the decedent of
his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named
nor instituted as heir, devisee or legatee, hence, there is preterition which would result to
intestacy. Such being the case, private respondents maintained that while procedurally the
court is called upon to rule only on the extrinsic validity of the will, it is not barred from
delving into the intrinsic validity of the same, and ordering the dismissal of the petition for
probate when on the face of the will it is clear that it contains no testamentary disposition of
the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.[6]
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as will by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
omitted, Article 854 of the New Civil Code thus applies. However,
insofar as the widow Dy Yieng Seangio is concerned, Article 854 does
not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the
case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)]
has made its position clear: for respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face,
the will appears to be intrinsically void would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added

23 | S U C C E S S I O N

futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved (underscoring
supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special Proceedings
No. 9993396 is hereby DISMISSED without pronouncement as to
costs.
SO ORDERED.[7]
Petitioners motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTIONAND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B
HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH
SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON
THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES
INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT
THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION
THEREOF, THE TESTATORS TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE
HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY
OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE
FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS
AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT

IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE

PRECEDENCE OVER INTESTATE PROCEEDINGS.

(2)

Petitioners argue, as follows:

(3)

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the will
when all concerned may appear to contest the allowance thereof, and cause notice of such
time and place to be published three weeks successively previous to the appointed time in
a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs,
legatees and devisees of the testator Segundo;

(4)

Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedents will and the holographic will
on its face is not intrinsically void;

(7)

Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs
in the direct line of Segundo were preterited in the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundos
intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that
he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to
the reasons for the disinheritance that were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be considered a form of maltreatment of
Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the
disinheritance of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1)

When a child or descendant has been found guilty of an

attempt against the life of the testator, his or her spouse,
descendants, or ascendants;

24 | S U C C E S S I O N

(5)
(6)

(8)

When a child or descendant has accused the testator of a

crime for which the law prescribes imprisonment for six years
or more, if the accusation has been found groundless;
When a child or descendant has been convicted of adultery
or concubinage with the spouse of the testator;
When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make a
will or to change one already made;
A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;
Maltreatment of the testator by word or deed, by the child
or descendant;[8]
When a child or descendant leads a dishonorable or
disgraceful life;
Conviction of a crime which carries with it the penalty of
civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, 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.
Segundos document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is written,
dated and signed by the hand of Segundo himself. An intent to dispose mortis causa[9] can
be clearly deduced from the terms of the instrument, and while it does not make an
affirmative disposition of the latters property, the disinheritance of Alfredo, nonetheless, is
an act of disposition in itself. In other words, the disinheritance results in the disposition of
the property of the testator Segundo in favor of those who would succeed in the absence
of Alfredo.[10]
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in
the form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that
intention. It is only when the intention of the testator is contrary to law, morals, or public
policy that it cannot be given effect.[11]
Holographic wills, therefore, being usually prepared by one who is not learned in the law,
as illustrated in the present case, should be construed more liberally than the ones drawn
by an expert, taking into account the circumstances surrounding the execution of the
instrument and the intention of the testator.[12] In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was executed by him in accordance with law
in the form of a holographic will. Unless the will is probated, [13] the disinheritance cannot be
given effect.[14]
With regard to the issue on preterition, [15] the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It was, in the Courts opinion, Segundos last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of

Alfredo. Also, Segundo did not institute an heir [16] to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son, Alfredo.
Considering that the questioned document is Segundos holographic will, and that the law
favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838
of the Civil Code provides that no will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his property may be rendered nugatory.[17]

25 | S U C C E S S I O N

In view of the foregoing, the trial court, therefore, should have allowed the holographic will
to be probated. It is settled that testate proceedings for the settlement of the estate of the
decedent take precedence over intestate proceedings for the same purpose. [18]
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No.
98-90870 is hereby suspended until the termination of the aforesaid testate proceedings.
No costs.
SO ORDERED