Suroza v. Judge Honrado, A.M. 2026 CFI, December 19, 1981.

14AUG

[AQUINO, J.]

FACTS
Mauro Suroza and Marcelina Salvador reared a boy named Agapito who used
the surname Suroza. Mauro died and Marcelina became the beneficiary of
Mauros pension. Years after, Agapito married Nenita. Marcelina executed a
notarial will. That will which is in English was thumbmarked by her. Marcelina
was illiterate. In that will, Marcelina bequeathed all her estate to her supposed
granddaughter Marilyn. In the opening paragraph of the will, it was stated that
English was a language understood and known to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the testatrix and
translated into Filipino language.

ISSUE
Whether or not a will written in another language which is a translation of the
language known to the testator is void.

RULING
YES. That could only mean that the will was written in a language not known to
the illiterate testatrix and, therefore, it is void because of the mandatory provision
of article 804 of the Civil Code that every will must be executed in a language or
dialect known to the testator. Thus, a will written in English, which was not known
to the Igorot testator, is void and must be disallowed.
NENITA DE VERA SUROZA, complainant, v. JUDGE REYNALDO P. HONRADO of the
Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy
Clerk of Court, respondents.

A.M. No. 2026-CFI, 19 December 1981

AQUINO, J.:

FACTS:

Mauro Suroza, a corporal in U.S. Army, married Marcelina Salvador in 1923. They
were childless. They reared a boy named Agapito who used the surname Suroza and
who considered them as his parents as shown in his 1945 marriage contract with
Nenita de Vera.

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the

Federal Government. That explains why on her death she had accumulated some
cash in two banks.

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Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita
was appointed as his guardian in 1953 when he was declared an incompetent by the
Court of First Instance.

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia
de la Cruz (apparently a girl friend of Agapito) and who was later delivered to
Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito
and as her granddaughter. Marilyn used the surname Suroza. She stayed with
Marcelina but was not legally adopted by Agapito. She married Oscar Medrano.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she
was 73 years old. That will which is in English was thumbmarked by her. She was
illiterate. Her letters in English to the Veterans Administration were also
thumbmarked by her. In that will, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.

ISSUE:

Whether or not a notarial will, which on its face is void because it is written in
English, a language not known to the illiterate testatrix, and which is probably a
forged will because she and the attesting witnesses did not appear before the notary
as admitted by the notary himself, be admitted for probate.

RULING:

No.

In this case, respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have readily
perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix "and translated into Filipino language".
That could only mean that the will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the mandatory provision of
article 804 of the Civil Code that every will must be executed in a language or dialect
known to the testator. The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly
referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the
anomaly as to the language of the will but also that there was something wrong in
instituting the supposed granddaughter as sole heiress and giving nothing at all to
her supposed father who was still alive.

2
Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally

conducted the hearing on the probate of the will so that he could have ascertained
whether the will was validly executed.

110 SCRA 388 Succession Will Should be Written in a Language

Known to the Testator
In 1973, Marcelina Suroza supposedly executed a notarial will
bequeathing her house and lot to a certain Marilyn Suroza. In 1974,
Marcelina died. Marina Paje was named as the executrix in the said will
and she petitioned before CFI Rizal that the will be admitted to
probate. The presiding judge, Honrado admitted the will to probate and
assigned Paje as the administratrix. Honrado also issued an ejectment
order against the occupants of the house and lot subject of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of
Marcelina was confined in the Veterans Hospital), learned of the
probate proceeding when she received the ejectment order (as she
was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said
notarial will is void because (a) the instituted heir therein Marilyn
Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the
only son of Marcelina, Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written in English a language
not known to Marcelina because the latter was illiterate so much so
that she merely thumbmarked the will, (d) the notary public who
notarized will admitted that Marcelina never appeared before him and
that he notarized the said will merely to accommodate the request of a
lawyer friend but with the understanding that Marcelina should later
appear before him but that never happened.
Honrado still continued with the probate despite the opposition until
testamentary proceeding closed and the property transferred to
Marilyn Sy.
Nenita then filed this administrative case against Honrado on the
ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting
into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he still continued
with the testamentary proceeding, this showed his wrongful intent. He
may even be criminally liable for knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence or
ignorance.

3
The will is written in English and was thumb marked by an obviously
illiterate Marcelina. This could have readily been perceived by Honrado
that that the will is void. In the opening paragraph of the will, it was
stated that English was a language understood and known to the
testatrix. But in its concluding paragraph, it was stated that the will
was read to the testatrix and translated into Filipino language. That
could only mean that the will was written in a language not known to
the illiterate testatrix and, therefore, it is void because of the
mandatory provision of Article 804 of the Civil Code that every will
must be executed in a language or dialect known to the testator. Had
Honrado been careful and observant, he could have noted not only the
anomaly as to the language of the will but also that there was
something wrong in instituting to Marilyn Sy as sole heiress and giving
nothing at all to Agapito who was still alive.
Honrado was fined by the Supreme Court.
Garcia v. Lacuesta Digest
Garcia v. Lacuesta
G.R. L-4067 November 29, 1951
Ponente: Paras, C.J.

Facts:
1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943.
The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who wrote the
name of the testator followed below by 'A ruego del testador' and the name of
Florentino Javier. In effect, it was signed by another although under the express
direction of the testator. This fact however was not recited in the attestation
clause. Mercado also affixed a cross on the will.

3. The lower court admitted the will to probate but this order was reversed by the
Court of Appeals on the ground that the attestation failed to recite the facts
surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state that Antero or
the testator caused Atty. Javier to write the former's name under his express

4
direction as required by Sec. 618 of the Civil Procedure. Finally, on the cross
affixed on the will by the testator, the Court held that it is not prepared to liken the
mere sign of a cross to a thumbmark for obvious reasons- the cross does not
have the trustworthiness of a thumbmark so it is not considered as a valid
signature.
90 Phil 189 Succession Signing Using an X Mark
Antero Mercado left a will dated January 3, 1943. The will appears to
have been signed by Atty. Florentino Javier as he wrote the name of
Antero Mercado and his name for the testatior on the will. HOWEVER,
immediately after Antero Mercados will, Mercado himself placed an
X mark.
The attestation clause was signed by three instrumental witnesses.
Said attestation clause states that all pages of the will were signed in
the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us
witnesses. The attestation clause however did not indicate that Javier
wrote Antero Mercados name.
ISSUE: Whether or not the will is valid.
HELD: No. The attestation clause is fatally defective for failing to state
that Antero Mercado caused Atty. Florentino Javier to write the
testators name under his express direction, as required by Section 618
of the Code of Civil Procedure.
But is there really a need for such to be included in the attestation
clause considering that even though Javier signed for Antero, Antero
himself placed his signature by virtue of the X mark, and by that,
Javiers signature is merely a surplusage? That the placing of the X
mark is the same as placing Anteros thumb mark.
No. Its not the same as placing the testators thumb mark. It would
have been different had it been proven that the X mark was Anteros
usual signature or was even one of the ways by which he signs his
name. If this were so, failure to state the writing by somebody else
would have been immaterial, since he would be considered to have
signed the will himself.

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

GARCIA, petitioner,
vs. JULIANA LACUESTA, ET AL., respondents.
G.R. No. L-4067, November 29, 1951
Paras, C. J.,

FACTS:

Antero Mercado left a will dated January 3, 1943. The will was written in
the Ilocano dialect and contains the following attestation clause:

5
 We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by himself and also by
us below his name and of this attestation clause and that of the left margin
of the three pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence
of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of

January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO (Sgd.) "ROSENDA

EVANGELISTA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier as he

wrote the name of Antero Mercado and his name for the testator on the will.
However, immediately after Antero Mercados name, Mercado himself placed an
X mark.

The attestation clause was signed by the three instrumental witnesses. The
attestation clause also states that all the pages of the will were signed in the
presence of the testator and all and each and every one of us witnesses.
However, the clause did not indicate that Atty. Javier wrote Antero Mercados
name.

Petitioner argues, however, that there is no need for such recital because
the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Javier is surplusage. Petitioners theory is that the cross is as
much a signature as a thumbmark, the latter having been held sufficient by this
Court in several previous cases.

It is not presented here that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he signed his
name.

ISSUE: W/N THE WILL OF ANTERO MERCADO IS VALID.

6
HELD: NO, THE WILL OF ANTERO MERCADO IS NOT VALID.

After mature reflection, we are not prepared to liken the mere sign of the
cross to a thumbmark, and the reason is obvious. The cross cannot and does not
have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a
sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner.
So ordered.
Matias v. Salud Digest
Matias vs. Salud
G.R. L-10907 June 29, 1957
Ponente: Concepcion, J.

Facts:
1. This case is an appeal from a CFI Cavite order denying the probate of the will
of Gabina Raquel. The document consist of 3 pages and it seems that after the
attestation clause, there appears the siganture of the testatrix 'Gabina Raquel',
alongside is a smudged in violet ink claimed by the proponents as the
thumbmark allegedly affixed by the tetratrix. On the third page at the end of the
attestation clause appears signatures on the left margin of each page, and also
on the upper part of each left margin appears the same violet ink smudge
accompanied by the written words 'Gabina Raquel' with 'by Lourdes Samonte'
underneath it.

2. The proponent's evidence is to the effect that the decedent allegedly instructed
Atty. Agbunag to drat her will and brought to her on January 1950. With all the
witnesses with her and the lawyer, the decedent affixed her thumbmark at the
foot of the document and the left margin of each page. It was also alleged that
she attempted to sign using a sign pen but was only able to do so on the lower
half of page 2 due to the pain in her right shoulder. The lawyer, seeing Gabina
unable to proceed instructed Lourdes Samonte to write 'Gabina Raquel by
Lourdes Samonte' next to each thumbmark, after which the witnesses signed at
the foot of the attestation clause and the left hand margin of each page.

3. The probate was opposed by Basilia Salud, the niece of the decedent.

7
4. The CFI of cavite denied the probate on the ground that the attestation clause
did not state that the testatrix and the witnesses signed each and every page nor
did it express that Lourdes was specially directed to sign after the testatrix.

Issue: Whether or not the thumbprint was sufficient compliance with the
law despite the absence of a description of such in the attestation clause

HELD: YES
The absence of the description on the attestation clause that another person
wrote the testatrix' name at her request is not a fatal defect, The legal
requirement only ask that it be signed by the testator, a requirement satisfied by
a thumbprint or other mark affixed by him.

As to the issue on the clarity of the ridge impression, it is held to be dependent

on the aleatory circumstances. Where a testator employs an unfamiliar way of
signing and that both the attestation clause and the will are silent on the matter,
such silence is a factor to be considered against the authenticity of the
testament. However, the failure to describe the signature itself alone is not
sufficient to refuse probate when evidence fully satisfied that the will was
executed and witnessed in accordance with law.
Nera v. Rimando Digest
Nera v. Rimando
G.R. L-5971 February 27, 1911
Ponente: Carson, J.:

'Test of Presence'

Facts:
1. At the time the will was executed, in a large room connecting with a smaller
room by a doorway where a curtain hangs across, one of the witnesses was in
the outside room when the other witnesses were attaching their signatures to the
instrument.

2. The trial court did not consider the determination of the issue as to the position
of the witness as of vital importance in determining the case. It agreed with the

8
ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of
the subscribing witnesses was in the outer room while the signing occurred in
the inner room, would not be sufficient to invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see the testator
and other witnesses in the act of affixing their signatures.

HELD: YES
The Court is unanimous in its opinion that had the witnesses been proven to be
in the outer room when the testator and other witnesses signed the will in the
inner room, it would have invalidated the will since the attaching of the signatures
under the circumstances was not done 'in the presence' of the witnesses in the
outer room. The line of vision of the witness to the testator and other witnesses
was blocked by the curtain separating the rooms.

The position of the parties must be such that with relation to each other at the
moment of the attaching the signatures, they may see each other sign if they
chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy
saw each other sign but whether they might have seen each other sign if they
chose to doso considering their physical, mental condition and position in relation
to each other at the moment of the inscription of the signature.
Icasiano v. Icasiano Digest
Icasiano vs. Icasiano
G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte
and for his appointment as executor thereof. It appears from the evidence that
the testatrix died on September 12, 1958. She executed a will in Tagalog, and
through the help of her lawyer, it was prepared in duplicates, an original and a
carbon copy.

2. On the day that it was subscribed and attested, the lawyer only brought the

9
original copy of the will while the carbon duplicate (unsigned) was left in Bulacan.
One of the witnesses failed to sign one of the pages in the original copy but
admitted he may have lifted 2 pages simultaneously instead when he signed the
will. Nevertheless, he affirmed that the will was signed by the testator and other
witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to

affix his signature to a page is sufficient to deny probate of the will

RULING: No, the failure to sign was entirely through pure oversight or mere
inadvertence. Since the duplicated bore the required signatures, this proves that
the omission was not intentional. Even if the original is in existence, a duplicate
may still be admitted to probate since the original is deemed to be defective, then
in law, there is no other will bu the duly signed carbon duplicate and the same
can be probated.

The law should not be strictly and literally interpreted as to penalize the testatrix
on account of the inadvertence of a single witness over whose conduct she has
no control of. Where the purpose of the law is to guarantee the identity of the
testament and its component pages, and there is no intentional or deliberate
deviation existed.

Note that this ruling should not be taken as a departure from the rules that the
will should be signed by the witnesses on every page. The carbon copy duplicate
was regular in all respects.
Cruz v. Villasor Digest
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:

Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the late
Valenti Cruz. However, the petitioner opposed the allowance of the will alleging
that it was executed through fraud, deceit, misrepresentation, and undue
influence. He further alleged that the instrument was executed without the
testator having been informed of its contents and finally, that it was not executed
in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will
was acknowledged. Despite the objection, the lower court admitted the will to
probate on the ground that there is substantial compliance with the legal

10
requirements of having at least 3 witnesses even if the notary public was one of
them.

Issue: Whether or not the will is valid in accordance with Art. 805 and 806
of the NCC

HELD: NO.
The will is not valid. The notary public cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having
signed the said will. An acknowledging officer cannot serve as witness at the
same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit,

and 'before' means in front of or preceding in space or ahead of. The notary
cannot split his personality into two so that one will appear before the other to
acknowledge his participation int he making of the will. To permit such situation
would be absurd.

Finally, the function of a notary among others is to guard against any illegal or
immoral arrangements, a function defeated if he were to be one of the attesting
or instrumental witnesses. He would be interested in sustaining the validity of the
will as it directly involves himself and the validity of his own act. he would be in
an inconsistent position, thwarting the very purpose of the acknowledgment,
which is to minimize fraud.
Javellana v. Ledesma Digest
Javellana vs. Ledesma
G.R. No. L-7179

Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the
deceased Apolinaria Ledesma in July 1953. This testament was deemed
executed on May 1950 and May 1952. The contestant was the sister and nearest
surviving relative of the deceased. She appealed from this decision alleging that
the will were not executed in accordance with law.

11
2. The testament was executed at the house of the testatrix. One the other hand,
the codicil was executed after the enactment of the New Civil Code (NCC), and
therefore had to be acknowledged before a notary public. Now, the contestant,
who happens to be one of the instrumental witnesses asserted that after the
codicil was signed and attested at the San Pablo hospital, that Gimotea (the
notary) signed and sealed it on the same occasion. Gimotea, however, said that
he did not do so, and that the act of signing and sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to the

codicil was signed somewhere else or in the office of the notary. The ix and the
witnesses at the hospital, was signed and sealed by the notary only when he
brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the
absence of the testator and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require
that the signing of the testator, the witnesses and the notary be accomplished in
one single act. All that is required is that every will must be acknowledged before
a notary public by the testator and witnesses. The subsequent signing and
sealing is not part of the acknowledgement itself nor of the testamentary act.
Their separate execution out of the presence of the testator and the witnesses
cannot be a violation of the rule that testaments should be completed without
interruption.

Tedoro CANEDA, et al.petitioners vs. Hon. COURT OF APPEALS

and William CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.

On December 5, 1978, Mateo Caballero, a widower without any

children, already in the twilight years of his life executed a last will and
testament before three attesting witnesses and he was duly assisted
by his lawyer and a notary public. It was declared therein that, among
other things that the testator was leaving by way of legacies and
devises his real and personal properties to specific persons, all of
whom do not appear to be related to Mateo. Not long after, he himself
filed a petition before the CFI seeking the probate of his last will and
testament but the scheduled hearings were postponed, until the
testator passed away before his petition could finally be heard by the
probate court. Benoni Cabrera, one of the legatees named in the will,

12
sought his appointment as special administrator of the testators
estate but due to his death, he was succeeded by William Cabrera, who
was appointed by RTC which is already the probate court.

PETITIONERS: The petitioners assail to the allowance of the testators

will on the ground that it was not executed in accordance with all the
requisites of law since the testator was already in a poor state of
health such that he could not have possibly executed the same.
Petitioners likewise contend that the will is null and void because 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.

RESPONDENTS: The respondent, on the other hand, argue that Mateo

was of sound and disposing mind and in good health when he executed
his will. Further, they also contend that the witnesses attested and
signed the will in the presence of the testator and of each other.

Whether or not the attestation clause in the last will of Mateo Caballero
is fatally defective such that whether or not it affects the validity of the
will.

Whether or not the attestation clause complies with the substantial

compliance pursuant to Article 809 of the Civil Code.

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 of the same. It is a
separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses; it gives affirmation to
the fact that compliance with the essential formalities required by law
has been observed. Under the 3rd paragraph of Article 805, such a
clause, the complete lack of which would result in the invalidity of the
will, should state:

1. The number of pages used upon which the will is

written;

2. That the testator signed, or expressly cause another

to sign, the will and every page thereof in the

presence of the attesting witnesses; and

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 3. That the attesting witnesses witnessed the signing

by the testator of the will and all its pages, and that

the said witnesses also signed the will and every

page thereof in the presence of the testator and of

one another.

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 sense, while subscription is the act of the hand.
The attestation clause herein assailed is 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. What is then clearly
lacking is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another.

The absence of the 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 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 Article 809 of
the Civil Code:

In the absence of bad faith, forgery, or fraud or undue and improper

pressure and influence, defects and imperfection 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.

The defects and imperfection must only be with respect to the form of
the attestation or the language employed therein. Such defects or
imperfection would not render a will invalid should it be proved that
the will was really executed and attested in compliance with Article
805. These 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.
In such a situation, the defect is not only in the form or language of the

14
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 it can be 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.

Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS Petitioner Apolonio Taboada filed a petition for probate of the
will of the late Dorotea perez. The will consisted of two pages, the first
page containing all the testamentary dispositions of the testator and
was signed at the end or bottom of the page by the testatrix alone and
at the left hand margin by the three instrumental witnesses. The
second page consisted of the attestation clause and the
acknowledgment was signed at the end of the attestation clause by
the three witnesses and at the left hand margin by the testatrix. The
trial court disallowed the will for want of formality in its execution
because the will was signed at the bottom of the page solely by the
testatrix, while the three witnesses only signed at the left hand margin
of the page. The judge opined that compliance with the formalities of
the law required that the witnesses also sign at the end of the will
because the witnesses attest not only the will itself but the signature of
the testatrix. Hence, this petition.

ISSUE Was the object of attestation and subscription fully when the
instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions?
HELD
(SHORT RULING)

On certiorari, the Supreme Court held a) that the objects of attestation

and subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page
which contains all the testamentary dispositions, especially so when
the will was properly identified by a subscribing witness to be the same
will executed by the testatrix; and b) that the failure of the attestation
clause to state the number of pages used in writing the will would have
been a fatal defect were it not for the fact that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses.

(LONG RULING [VERBATIM])

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Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed.
Attestation consists in witnessing the testator's execution of the will in
order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of
the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose
of identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the

first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales
v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental
objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a
will" (Report of the Code Commission, p. 103).
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly identified by
subscribing witness Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or substitution behind the
questioned order.

ALVARADO vs. GAVIOLA

September 14, 1993

FACTS:

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 The testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the 8-paged document, read the same
aloud in the presence of the testator, the 3 instrumental witnesses and the notary
public. The latter 4 followed the reading with their own respective copies
previously furnished them.

Said will was admitted to probate. Later on, a codicil was executed, and by
that time, the testator was already 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.

ISSUE:

Was there substantial compliance to the reading of the will?

HELD:

Article 808 not only applies to blind testators, but also to those
who, for one reason or another, are incapable of reading their
wills. Hence, the will should have been read by the notary public and an
instrumental witness. However, the spirit behind the law was served though the
letter was not. In this case, there was substantial compliance. 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.

In this case, 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.

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Garcia v. Vasquez Digest
Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969

Fernando, J (Ponente)

Facts:

1. Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a
language she knew an spoke. The other will was executed in December 1960
consisting of only one page, and written in Tagalog. The witnesses to the 1960 will
declared that the will was first read 'silently' by the testatrix before signing it. The
probate court admitted the will.

2. The oppositors alleged that the as of December 1960, the eyesight of the deceased
was so poor and defective that she could not have read the provisions contrary to
the testimony of the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code
(NCC) should apply.If the testator is blind or incapable of reading, he must be
apprised of the contents of the will for him to be able to have the opportunityto
object if the provisions therein are not in accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation

to remove her cataract and being fitted with the lenses, this did not improve her
vision. Her vision remained mainly for viewing distant objects and not for reading.
There was no evidence that her vision improved at the time of the execution of the
2nd will. Hence, she was incapable of reading her own will. The admission of the will
to probate is therefor erroneous.

Gonzales v. Court of Appeals (CA) Digest

Gonzales v. CA
G.R. No. L-37453 May 25, 1979
Guerrero, J. (Ponente)

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Facts:
1. Petitioner Rizalina Gonzales and Lutgarda Santiago (Private respondent) are
the nieces of the deceased Isabel Gabriel who died a widow. A will was thereafter
submitted to probate. The said will was typewritten, in Tagalog and appeared to
have been executed in April 1961 or two months prior to the death of Isabel. It
consisted of 5 pages including the attestation and acknowledgment, with the
signature of testatrix on page 4 and the left margin of all the pages.

2. Lutgarda was named as the universal heir and executor. The petitioner
opposed the probate.

3. The lower court denied the probate on the ground that the will was not
executed and attested in accordance with law on the issue of the competency
and credibility of the witnesses.

Issue: Whether or not the credibility of the subscribing witnesses is material to

the validity of a will

RULING: No. The law requires only that witnesses posses the qualifications
under Art. 820 (NCC) and none of the disqualifications of Art. 802. There is no
requirement that they are of good standing or reputation in the community, for
trustworthiness, honesty and uprightness in order that his testimony is believed
and accepted in court. For the testimony to be credible, it is not mandatory that
evidence be established on record that the witnesses have good standing in the
the community. Competency is distinguished from credibility, the former being
determined by Art. 820 while the latter does not require evidence of such good
standing. Credibility depends on the convincing weight of his testimony in court.
Guerrero vs Bihis
G.R. No. 174144 April 17, 2007

Facts:
Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and
respondent Resurreccion A. Bihis, died. Guerrero filed for probate in the RTC
QC. Respondent Bihis opposed her elder sisters petition on the following
grounds: the will was not executed and attested as required by law; its attestation
clause and acknowledgment did not comply with the requirements of the law; the

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signature of the testatrix was procured by fraud and petitioner and her children
procured the will through undue and improper pressure and influence. The trial
court denied the probate of the will ruling that Article 806 of the Civil Code was
not complied with because the will was acknowledged by the testatrix and the
witnesses at the testatrixs residence at No. 40 Kanlaon Street, Quezon City
before Atty. Macario O. Directo who was a commissioned notary public for and in
Caloocan City.

ISSUE:

Did the will acknowledged by the testatrix and the instrumental witnesses
before a notary public acting outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code?

HELD:

No. One of the formalities required by law in connection with the execution of a
notarial will is that it must be acknowledged before a notary public by the testator
and the witnesses. This formal requirement is one of the indispensable 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 the
province. 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 for and in Quezon City,
he lacked the authority to take the acknowledgment of the testratix and the
instrumental witnesses. In the same vain, the testratix and the instrumental
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.
Lee v. Tambago
544 SCRA 393
FACTS:
Complainant, Manuel L. Lee, charged respondent, Atty. Regino B. Tambago, with
violation of Notarial Law and the Ethics of the legal profession for notarizing a
will that is alleged to be spurious in nature in containing forged signatures of his
father, the decedent, Vicente Lee Sr. and two other witnesses. In the said will, the
decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save
for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-
siblings of complainant.

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The will was purportedly executed and acknowledged before respondent on June
30, 1965.Complainant, however, pointed out that the residence certificateof the
testator noted in the acknowledgment of the will was dated January 5,
1962.Furthermore, the signature of the testator was not the same as his signature
as donor in a deed of donationwhich supposedly contained his purported
signature. Complainant averred that the signatures of his deceased father in the
will and in the deed of donation were in any way entirely and diametrically
opposed from one another in all angle[s].
Complainant also questioned the absence of notation of the residence certificates
of the purported witnesses Noynay and Grajo. He alleged that their signatures
had likewise been forged and merely copied from their respective voters
affidavits.
Complainant further asserted that no copy of such purported will was on file in
the archives division of the Records Management and Archives Office of the
National Commission for Culture and the Arts (NCCA).
ISSUE:
Was the will spurious?
HELD:
Yes, thus Tambago violated the Notarial Law and the ethics of legal profession.
The law provides for certain formalities that must be followed in the execution
of wills. The object of solemnities surrounding the execution of wills is to close
the door on bad faith and fraud, to avoid substitution of wills and testaments and
to guarantee their truth and authenticity.
A notarial will, as the contested will in this case, is required by law to
be subscribedat the end thereof by the testator himself. In addition, it should be
attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another. The will in question was attested by only two
witnesses. On this circumstance alone, the will must be considered void. This is in
consonance with the rule that acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law itself authorizes their
validity. The Civil Code likewise requires that a will must be acknowledged before
a notary public by the testator and the witnesses. An acknowledgment is the act
of one who has executed a deed in going before some competent officer or court
and declaring it to be his act or deed. It involves an extra step undertaken
whereby the signatory actually declares to the notary public that the same is his
or her own free act and deed. The acknowledgment in a notarial will has a two-
fold purpose: (1) to safeguard the testators wishes long after his demise and (2)
to assure that his estate is administered in the manner that he intends it to be
done.
A cursory examination of the acknowledgment of the will in question shows that
this particular requirement was neither strictly nor substantially complied with.
For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notationof the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent
invalidated the will.

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As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. These
formalities are mandatory and cannot be disregarded.

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