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G.R. No.

103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA


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

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation of that last will.1 It was declared therein, among other
things, that the testator was leaving by way of legacies and devises his real and personal properties
to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the petition for hearing on August 20,
1979 but the same and subsequent scheduled hearings were postponed for one reason to another.
On May 29, 1980, the testator passed away before his petition could finally be heard by the probate
court.3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his
appointment as special administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981.4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the appointment of a special administrator for his
estate.5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged date
of its execution, the testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the
signature of the testator therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while he
was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo
Caballero was in good health and was not unduly influenced in any way in the execution of his will.
Labuca also testified that he and the other witnesses attested and signed the will in the presence of
the testator and of each other. The other two attesting witnesses were not presented in the probate
hearing as the had died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will
and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot


overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it
was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law.9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for
the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court,
and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with
Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be
considered as having substantialy complied with the requirements of Art. 805 of the
Civil Code. What appears in the attestation clause which the oppositors claim to be
defective is "we do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting of THREE
PAGES, including the acknowledgment, each page numbered correlatively in letters
of the upper part of each page, as his Last Will and Testament, and he has signed
the same and every page thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator and in the presence of each
and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to


indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was
denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners
assert that respondent court has ruled upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning once more, on the same ground as that
raised before respondent court, the validity of the attestation clause in the last will of Mateo
Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute.14 the first
kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be
interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the
attesting witness. 15hence 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 the attesting witnesses witnessed the
signing by the testator of the will and all its pages, and that saidwitnesses also signed the will and
every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages;23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of authentication and identification, and
thus indicates that the will is the very same instrument executed by the testator and attested to by
the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of
the will as embodied in the attestation clause.25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity thereof.26 As it appertains only
to the witnesses and not to the testator, it need be signed only by them.27 Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on
wills in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the three attesting
witnesses hereto.30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will
in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper published as a will is
only to write on the same paper the names of the witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's execution of
the will in order to see and take note mentally that those things are done which the statute requires
for the execution of a will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it involves a mental
act, there would be no means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other
hand, although the words "in the presence of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed the will and every page thereof in
the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will
was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein
he urged caution in the application of the substantial compliance rule therein, is correct and should
be applied in the case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of
each other.35 In such a situation, the defect is not only in the form or language of the attestation
clause but the total absence of a specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation clause statement, or
an implication thereof, that the attesting witness did actually bear witness to the signing by the
testator of the will and all of its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied
by the text of the will or a consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the
will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan,36 where it was held that the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized
that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation already given assures such ends,
any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent
cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez
vs. Vergel de Dios, et al.,41and 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, 46and Sano vs. Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause
had failed to state that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed, with these reasons
therefor:

In support of their argument on the assignment of error above-mentioned, appellants


rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43
Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit


inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be


mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions
of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation 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." 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
Toray52 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,55Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs.
Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation
rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his
property.

However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or difficulty,
nor does it open the door to serious consequences. The later decisions do tell us when and where to
stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in
any part of the document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine
the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.67

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

SO ORDERED.

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.


Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

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

In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the
end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

G.R. No. L-36033 November 5, 1982


IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of
the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the
will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of
two pages. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying
the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of
the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed
the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix
and all the three instrumental and attesting witnesses sign at the end of the will and in the presence
of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be


interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place
so heavy an import on the space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation clause does
not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control where the purpose of the law
to guarantee the Identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion
for appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.

SO ORDERED.

G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,


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

Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.


PUNO, J.:

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of
appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by
Calibia Lingdan Bulanglang, who died on March 20, 1976.

The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She
also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24,
1973. Both documents contained the thumbmarks of decedent. They were also signed by three (3)
attesting witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal Judge and
Notary Public Ex-Officio of Bauko, Mt. Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of
Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the proceedings, and was duly
substituted by petitioner. Private respondents, relatives of decedent, opposed the Petitioner filed by
Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect that
decedent did not know; that decedent was mentally incapacitated to execute the two documents
because of her advanced age, illness and deafness; that decedent’s thumbmarks were procured
through fraud and undue influence; and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedent’s
will and its codicil. The decision was appealed to and reversed by the respondent Court of Appeals.
It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of the New
Civil Code but for one crucial factor of discrepancy in the color of ink when the
instrumental witnesses affixed their respective signatures. When subjected to cross-
examination, Codcodio Nacnas as witness testified as follows:

Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1", Exhibit
"B" and "B-1" which is the testament was passed around all of you so
that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign — I withdraw


the question. How did Calibia Lingdan Bulanglang sign the last will
and testament?
A She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb to her
name.

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

A Jose Becyagen.

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

A Ballpen.

Q And after Jose Becyagen signed his name with the ballpen, who
was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen, Exhibit
"B" and "B-1" plus the ballpen which used to sign so that you could
sign your name, is that correct?

A Yes, sir.

Q And then after you signed, who was the next to sign the document,
Exhibit "B" and "B-1"?

A Hilario Coto-ong.

Q So you passed also to Hilario Coto-ong the same Exhibit "B" and
"B-1" and the ballpen so that he could sign his name as witness to
the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truth before the
Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.
For his part, Obanan Ticangan likewise admitted during cross-examination in regard
to the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all sign with the
same ballpen?

A One.

Such admissions from instrumental witnesses are indeed significant since they point
to no other conclusion than that the documents were not signed by them in their
presence but on different occasions since the same ballpen used by them
supposedly in succession could not have produced a different color from blue to
black and from black to blue. In fact, the attestation clause followed the same
pattern. The absurd sequence was repeated when they signed the codicil, for which
reason, We have no other alternative but to disallow the Last Will and Codicil. Verily,
if the witnesses and testatrix used the same ballpen, then their signatures would
have been in only one color, not in various ones as shown in the documents.
Moreover, the signatures, in different colors as they are, appear to be of different
broadness, some being finer than the others, indicating that, contrary to what the
testamentary witnesses declared on the witness stand, not only one ballpen was
used, and, therefore, showing that the documents were not signed by the testatrix
and instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46.
Citations omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was
denied by the respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent court’s
conclusion that both decedent’s will and codicil were not subscribed by the witnesses in the
presence of the testator and of one another, contrary to the requirements of Article 805 of the Civil
Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF


SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING BASED
ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO THE
TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE
THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL
WITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF


SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING THE
PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND
TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence submitted,
respondent appellate court erred in concluding that both decedent’s Last Will and Testament, and its
Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule,
factual findings of the Court of Appeals are considered final and conclusive, and cannot be reviewed
on appeal to this court. In the present instance, however, there is reason to make an exception to
that rule, since the finding of the respondent court is contrary to that of the trial court, viz.:

. . . (Private respondents) pointed out however, that the assertions of petitioner’s


witnesses are rife with contradictions, particularly the fact that the latter’s signatures
on the documents in issue appear to have been written in ballpens of different colors
contrary to the statements of said witnesses that all of them signed with only one
ballpen. The implication is that the subscribing witnesses to the Will and Codicil, and
the testatrix did not simultaneously sign each of the documents in one sitting but did
it piecemeal — a violation of Art. 805 of the Code. This conclusion of the (private
respondents) is purely circumstantial. From this particular set of facts, numerous
inferences without limits can be drawn depending on which side of the fence one is
on. For instance, considering the time interval that elapsed between the making of
the Will and Codicil, and up to the filing of the petition for probate, the possibility is
not remote that one or two of the attesting witnesses may have forgotten certain
details that transpired when they attested the documents in question . . . (Rollo, pp.
36-37.)

A review of the facts and circumstances upon which respondent Court of Appeals based its
impugned finding, however, fails to convince us that the testamentary documents in question were
subscribed and attested by the instrumental witnesses during a single occasion.

As sharply noted by respondent appellate court, the signatures of some attesting witnesses in
decedent’s will and its codicil were written in blue ink, while the others were in black. This
discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens
were used by the signatories on the two documents. In fact, two (2) of petitioner’s witnesses even
testified that only one (1) ballpen was used in signing the two testamentary documents.

It is accepted that there are three sources from which a tribunal may properly acquire knowledge for
making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains these sources as follows:

If, for example, it is desired to ascertain whether the accused has lost his right hand
and wears an iron hook in place of it, one source of belief on the subject would be
the testimony of a witness who had seen the arm; in believing this testimonial
evidence, there is an inference from the human assertion to the fact asserted. A
second source of belief would be the mark left on some substance grasped or carried
by the accused; in believing this circumstantial evidence, there is an inference from
the circumstance to the thing producing it. A third source of belief remains, namely,
the inspection by the tribunal of the accused’s arm. This source differs from the other
two in omitting any step of conscious inference or reasoning, and in proceeding by
direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all, a third
source of inference, i.e., an inference from the impressions or perceptions of the
tribunal to the objective existence of the thing perceived. The law does not need and
does not attempt to consider theories of psychology as to the subjectivity of
knowledge or the mediateness of perception. It assumes the objectivity of external
nature; and, for the purposes of judicial investigation, a thing perceived by the
tribunal as existing does exist.
There are indeed genuine cases of inference by the tribunal from things perceived to
other things unperceived — as, for example, from a person’s size, complexion, and
features, to his age; these cases of a real use of inference can be later more fully
distinguished . . . But we are here concerned with nothing more than matters directly
perceived — for example, that a person is of small height or is of dark complexion; as
to such matters, the perception by the tribunal that the person is small or large, or
that he has a dark or light complexion, is a mode of acquiring belief which is
independent of inference from either testimonial or circumstantial evidence. It is the
tribunal’s self-perception, or autopsy, of the thing itself.

From the point of view of the litigant party furnishing this source of belief, it may be
termed Autoptic Proference. 3 (Citations omitted.)

In the case at bench, the autoptic proference contradicts the testimonial evidence produced by
petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white
— or more accurately, in black and blue — that more than one pen was used by the signatories
thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioner’s claim
that both testamentary documents in question were subscribed to in accordance with the provisions
of Art. 805 of the Civil Code.

Neither did respondent court err when it did not accord great weight to the testimony of Judge
Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary
documents were subscribed and attested to, starting from decedent’s thumbmarking thereof, to the
alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in
Judge Tolete’s testimony is there any kind of explanation for the different-colored signatures on the
testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court
of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and
Testament, and the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMED IN
TOTO. Costs against petitioner.

SO ORDERED.

40 Phil. 476

[ G.R. No. 13431, November 12, 1919 ]

IN RE WILL OF ANA ABANGAN. GERTRUDIS ABANGAN, EXECUTRIX


AND APPELLEE, VS. ANASTACIA ABANGAN ET AL., OPPONENTS AND
APPELLANTS.

DECISION

AVANCEÃ'A, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to
probate Ana Abangan's will executed July, 1916. From this decision the
opponents appealed.

Said document, duly probated as Ana Abangan's will, i' consists of two
sheets, the first of which contains all of the disposition of the testatrix, duly
signed at the bottom by Martin Montalban (in the name and under the
direction of the testatrix) and by three witnesses. The following sheet
contains only the attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on the left margin
by the testatrix and the three witnesses, nor numbered by letters; and these
omissions, according to appellants' contention, are defects whereby the
probate of the will should have been denied. We are of the opinion that the
will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on
the left margin by the testator and three witnesses in the presence of each
other, Act No. 2645 (which is the one applicable in the case) evidently has
for its object (referring to the body of the will itself) to avoid the
substitution of any of said sheets, thereby changing the testator's
dispositions. ^ But when these dispositions are wholly written on only one
sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin, the
statute took into consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the testator and
the witnesses do not have to sign at the bottom. A different interpretation
would assume that the statute requires that this sheet, already signed at the
bottom, be signed twice. We cannot attribute to the statute such an
intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at
the bottom of the sheet guaranties its authenticity, another signature on its
left margin would be unnecessary; and if they d.o not guaranty, same
signatures, affixed on another part of same sheet, would add nothing. We
cannot assume that the statute regards of such importance the place where
the testator and the witnesses must sign on the sheet that it would consider
that their signatures written on the bottom do not guaranty the authenticity
of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered


correlatively in letters placed on the upper part of the sheet, it is likewise
clear that the object of Act No. 2645 is to know whether any sheet of the will
has been removed. But, when all the dispositive parts of a will! are written
x>n one sheet only, the object of the statute disappears because the removal
of this single sheet, although Unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the
will, we hold that in the one accompanying the will in question, the
signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are fprmalities not required by the
statute. Moreover, referring specially to the signature of the testatrix, we
can add that same is not necessary in the attestation clause because this, as
its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting two sheets the
first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the second contains only the
attestation clause and is signed also at the bottom by the three witnesses, it
is not necessary that both sheets be further signed on their margins by the
testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close


the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their "truth and authenticity. Therefore the
laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded.

As another ground for this appeal, it is alleged the records do not show that
the testatrix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the city
of Cebu and in the dialect of this locality where the testatrix was a neighbor
is enough, in the absence of any proof to the contrary, to presume that she
knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby
affirmed with costs against the appellants. So ordered.

G.R. No. L-18979 June 30, 1964

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


CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.


Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased,
and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator. 1äw phï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as
his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano
filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano
filed her amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate. From this
order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00,
on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and
its duplicate were subscribed at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that
the attestation clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing
in the duplicate original were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three
other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and
we feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the
charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite evidence against the validity
of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set
of signatures in every page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in admitting the amended
petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.

G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,


vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.

DECISION

TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to
the due execution of this document, the Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient
to deny probate. A notarial will with all three defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the
due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills — that they be acknowledged before a notary public by the testator and the witnesses.
A notarial will executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC)
of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking
huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at


patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si


Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa
lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang
lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari
ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubali’t at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at


kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO


Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

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

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as
the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will
is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioner’s right to occupy the properties of the decedent.3 It also
asserted that contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance
with law. She pointed out that decedent’s signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments are among the central matters to
this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect
to the formalities in the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments
that the will was not properly executed and attested to in accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.

On the oppositor’s contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification
and attestation of the will.

With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed
on upper part of each page and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first page contains the entire text of
the testamentary dispositions, and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the
will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.

As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages
used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial compliance rule."11

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

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause
to state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted
for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation clause to state the number of pages
contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much
greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further
observed that "it cannot be denied that the x x x requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of
pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not
state the number of pages used in the will, however, the same was found in the last part of the body
of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this case out
of the rigid rule of construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the
Will states the number of pages used in the:

"x x x

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the
Will. The will does not even contain any notarial acknowledgment wherein the number of pages of
the will should be stated.21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section

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

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project
consists in the [liberalization] of the manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator."25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution
of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination
of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other,30 the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which
can be supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s presence should be considered
a fatal flaw since the attestation is the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the fruition of the
testator’s incontestable desires, and not for the indulgent admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before the
notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these
two classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms part
of the will. On the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing
the value of the instrumental witnesses’ signatures on each and every page, the fact must be noted
that it is the attestation clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is written; the fact that the testator had signed
the will and every page thereof; and that they witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case
is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as
of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at


ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of
contemplation can those words be construed as an acknowledgment. An acknowledgment is the act
of one who has executed a deed in going before some competent officer or court and declaring it to
be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is his/her own free
act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor.42 Ordinarily, the language of
the jurat should avow that the document was subscribed and sworn before the notary public, while in
this case, the notary public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the decedent and the instrumental
witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An acknowledgement
is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing
for the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A
notarial will that is not acknowledged before a notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign
each and every page of the will on the left margin, except the last; and that all the pages shall be
numbered correlatively in letters placed on the upper part of each page. In this case, the decedent,
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is
a line of thought that has disabused the notion that these two requirements be construed as
mandatory.45Taken in isolation, these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

A.C. No. 5281 February 12, 2008

MANUEL L. LEE, petitioner,


vs.
ATTY. REGINO B. TAMBAGO, respondent.

RESOLUTION

CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty.
Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for
notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed
the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano
Noynay and Loreto Grajo, the purported witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee,
save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of
complainant.

The will was purportedly executed and acknowledged before respondent on June 30,
1965.1 Complainant, however, pointed out that the residence certificate2 of the testator noted in the
acknowledgment of the will was dated January 5, 1962.3 Furthermore, the signature of the testator
was not the same as his signature as donor in a deed of donation4 (containing his purported genuine
signature). Complainant averred that the signatures of his deceased father in the will and in the deed
of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s]."5

Complainant also questioned the absence of notation of the residence certificates of the purported
witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely
copied from their respective voters’ affidavits.

Complainant further asserted that no copy of such purported will was on file in the archives division
of the Records Management and Archives Office of the National Commission for Culture and the
Arts (NCCA). In this connection, the certification of the chief of the archives division dated
September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by
BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office[’s] files.6

Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained
false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the
will in question was fake and spurious. He alleged that complainant was "not a legitimate son of
Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by
respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by
the joint affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr.
xxx."9

Respondent further stated that the complaint was filed simply to harass him because the criminal
case filed by complainant against him in the Office of the Ombudsman "did not prosper."

Respondent did not dispute complainant’s contention that no copy of the will was on file in the
archives division of the NCCA. He claimed that no copy of the contested will could be found there
because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand his share
in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.10

In his report, the investigating commissioner found respondent guilty of violation of pertinent
provisions of the old Notarial Law as found in the Revised Administrative Code. The violation
constituted an infringement of legal ethics, particularly Canon 111 and Rule 1.0112 of the Code of
Professional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission on
Bar Discipline recommended the suspension of respondent for a period of three months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with


modification, the Report and Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record and the applicable laws and
rules, and considering Respondent’s failure to comply with the laws in the discharge of his
function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice
of law for one year and Respondent’s notarial commission is Revoked and
Disqualified from reappointment as Notary Public for two (2) years.14

We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to take effect after his death.15 A will may either be
notarial or holographic.

The law provides for certain formalities that must be followed in the execution of wills. The object of
solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity.16

A notarial will, as the contested will in this case, is required by law to be subscribed at the end
thereof by the testator himself. In addition, it should be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.17

The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance
alone, the will must be considered void.18 This is in consonance with the rule that acts executed
against the provisions of mandatory or prohibitory laws shall be void, except when the law itself
authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary public by the
testator and the witnesses.19 The importance of this requirement is highlighted by the fact that it was
segregated from the other requirements under Article 805 and embodied in a distinct and separate
provision.20

An acknowledgment is the act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby
the signatory actually declares to the notary public that the same is his or her own free act and
deed.21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testator’s
wishes long after his demise and (2) to assure that his estate is administered in the manner that he
intends it to be done.

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

As the acknowledging officer of the contested will, respondent was required to faithfully observe the
formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22

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

The Notarial Law then in force required the exhibition of the residence certificate upon notarization of
a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residence tax. – Every


contract, deed, or other document acknowledged before a notary public shall have certified
thereon that the parties thereto have presented their proper [cedula] residence certificate or
are exempt from the [cedula] residence tax, and there shall be entered by the notary public
as a part of such certificate the number, place of issue, and date of each [cedula] residence
certificate as aforesaid.25

The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which
stated:

When a person liable to the taxes prescribed in this Act acknowledges any document before
a notary public xxx it shall be the duty of such person xxx with whom such transaction is had
or business done, to require the exhibition of the residence certificate showing payment of
the residence taxes by such person xxx.

In the issuance of a residence certificate, the law seeks to establish the true and correct identity of
the person to whom it is issued, as well as the payment of residence taxes for the current year. By
having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with
the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of
his failure to demand the exhibition of the residence certificates of Noynay and Grajo.

On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized
will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and the
witness. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (emphasis supplied)

Respondent’s failure, inadvertent or not, to file in the archives division a copy of the notarized will
was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the necessary entries
pertaining to the will in his notarial register. The old Notarial Law required the entry of the following
matters in the notarial register, in chronological order:

1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;


6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of the instrument.27

In an effort to prove that he had complied with the abovementioned rule, respondent contended that
he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented
a photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a
certification28 stating that the archives division had no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is
unavailable. The proponent must first prove the existence and cause of the unavailability of the
original,29 otherwise, the evidence presented will not be admitted. Thus, the photocopy of
respondent’s notarial register was not admissible as evidence of the entry of the execution of the will
because it failed to comply with the requirements for the admissibility of secondary evidence.

In the same vein, respondent’s attempt to controvert the certification dated September 21,
199930 must fail. Not only did he present a mere photocopy of the certification dated March 15,
2000;31 its contents did not squarely prove the fact of entry of the contested will in his notarial
register.

Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the
performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds
will be undermined.33

Defects in the observance of the solemnities prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the importance and delicate nature of a will,
considering that the testator and the witnesses, as in this case, are no longer alive to identify the
instrument and to confirm its contents.34 Accordingly, respondent must be held accountable for his
acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. — The following derelictions of duty on the part of a
notary public shall, in the discretion of the proper judge of first instance, be sufficient ground
for the revocation of his commission:

xxx xxx xxx

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

xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates.36

These gross violations of the law also made respondent liable for violation of his oath as a lawyer
and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and
Rule 1.0139 of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines,
uphold the Constitution and obey the laws of the land.40 For a lawyer is the servant of the law and
belongs to a profession to which society has entrusted the administration of law and the
dispensation of justice.41

While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen,
a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a
servant of the law, a lawyer should moreover make himself an example for others to
emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as respect for
the law is concerned.43

The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies
disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a
finding or acknowledgment that he has engaged in professional misconduct.45 These sanctions
meted out to errant lawyers include disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases
that the power to disbar must be exercised with great caution47 and should not be decreed if any
punishment less severe – such as reprimand, suspension, or fine – will accomplish the end
desired.48 The rule then is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the court.49

Respondent, as notary public, evidently failed in the performance of the elementary duties of his
office. Contrary to his claims that he "exercised his duties as Notary Public with due care and with
due regard to the provision of existing law and had complied with the elementary formalities in the
performance of his duties xxx," we find that he acted very irresponsibly in notarizing the will in
question. Such recklessness warrants the less severe punishment of suspension from the practice of
law. It is, as well, a sufficient basis for the revocation of his commission50 and his perpetual
disqualification to be commissioned as a notary public.51

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional


misconduct. He violated (1) the Lawyer’s Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and
Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the
provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his
notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of him
as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from
reappointment as a notary public.

Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the
Philippines and the Office of the Bar Confidant, as well as made part of the personal records of
respondent.

SO ORDERED.

G.R. No. 157451 December 16, 2005

LETICIA VALMONTE ORTEGA, Petitioner,


vs.
JOSEFINA C. VALMONTE, Respondent.

DECISION
PANGANIBAN, J.:

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

The Case

Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and
set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of
Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET
ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner
Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant
proceedings."4

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States
until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and
he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he
owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two
years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28
years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a
little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down
as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains
the entire testamentary dispositions and a part of the attestation clause, and was signed at the end
or bottom of that page by the testator and on the left hand margin by the three instrumental
witnesses. The second page contains the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on
the left hand margin. It provides in the body that:

‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

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

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

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila,
described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila
registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share
alike;

b. 2-storey building standing on the above-described property, made of strong and mixed materials
used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila
also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of my
deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-
owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings
account bank book in USA which is in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament,
and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City,
Philippines.’

"The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give
them proper notice pursuant to law;

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

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an
advance sate of senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the petitioner
and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument
should be his will at the time of affixing his signature thereto;’

and she also opposed the appointment as Executrix of Josefina alleging her want of understanding
and integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro
Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her
daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were times though when to shave off on
expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when
the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who
were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the
existence of the last will and testament of her husband, but just serendipitously found it in his attache
case after his death. It was only then that she learned that the testator bequeathed to her his
properties and she was named the executrix in the said will. To her estimate, the value of property
both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too
that the testator never suffered mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly
pension. Josefina also asserts that her husband was in good health and that he was hospitalized
only because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that it was
in the first week of June 1983 when the testator together with the three witnesses of the will went to
his house cum law office and requested him to prepare his last will and testament. After the testator
instructed him on the terms and dispositions he wanted on the will, the notary public told them to
come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were instructed by his wife to come
back on August 9, 1983, and which they did. Before the testator and his witnesses signed the
prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect
which the testator spoke and understood. He likewise explained that though it appears that the will
was signed by the testator and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually on August 9, 1983. He
reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like
the document to appear dirty. The notary public also testified that to his observation the testator was
physically and mentally capable at the time he affixed his signature on the will.

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

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there
are other children from the siblings of Placido who are just as entitled to inherit from him. She
attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial
will the testator was already 83 years old and was no longer of sound mind. She knew whereof she
spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s family to live with
him and they took care of him. During that time, the testator’s physical and mental condition showed
deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for
whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the
will; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an
advanced state of senility

"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of Appeals

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

Hence, this Petition.7

Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended that the instrument should be his last will and
testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the
subject will."8

In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.

This Court’s Ruling

The Petition has no merit.

Main Issue:
Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under
Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during
the trial may be examined and the factual matters resolved by this Court when, as in the instant
case, the findings of fact of the appellate court differ from those of the trial court.9

The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that must
be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the instances when a
will may be disallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

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

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or
of some other person;

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

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will
at the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud in its
execution and challenging the testator’s state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but
maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testator’s wife and sole beneficiary, conspired with the
notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of the will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to
be [a] Fil-American pensionado,"11 thus casting doubt on the intention of respondent in seeking the
probate of the will. Moreover, it supposedly "defies human reason, logic and common
experience"12 for an old man with a severe psychological condition to have willingly signed a last will
and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is led to make a certain will which, but for
the fraud, he would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the
time of its execution.14 The burden to show otherwise shifts to the proponent of the will only upon a
showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-serving
allegations of petitioner, no evidence of fraud was ever presented.

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

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the
will does not invalidate the document, "because the law does not even require that a [notarial] will x x
x be executed and acknowledged on the same occasion."18 More important, the will must be
subscribed by the testator, as well as by three or more credible witnesses who must also attest to it
in the presence of the testator and of one another.19Furthermore, the testator and the witnesses must
acknowledge the will before a notary public.20 In any event, we agree with the CA that "the variance in
the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively
explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October
13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:

"Atty. Floro Sarmiento:

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

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?

A They did as of agreement but unfortunately, I was out of town.

xxxxxxxxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing
therein. Was this the actual date when the document was acknowledged?

A Yes sir.

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

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


Q Why did you not make the necessary correction on the date appearing on the body of the
document as well as the attestation clause?

A Because I do not like anymore to make some alterations so I put it in my own handwriting August
9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us this
discrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first
week of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty.
Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxxxxxxxx

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

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.


Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a
fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from
the allowance of the will. The testimonies of the three subscribing witnesses and the notary are
credible evidence of its due execution.23 Their testimony favoring it and the finding that it was
executed in accordance with the formalities required by law should be affirmed, absent any showing
of ill motives.24

Capacity to Make a Will

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

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury
or other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

"The burden of proof that the testator was not of sound mind at the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to know to be
considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the character of the testamentary act. Applying this
test to the present case, we find that the appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of
property he owned, the extent of his shares in them and even their locations. As regards the proper
objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have
stated earlier, the omission of some relatives from the will did not affect its formal validity. There
being no showing of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:

"Between the highest degree of soundness of mind and memory which unquestionably carries with it
full testamentary capacity, and that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has
been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will
not render a person incapable of making a will; a weak or feebleminded person may make a valid
will, provided he has understanding and memory sufficient to enable him to know what he is about to
do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it
is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It
has been held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind."26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of
Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

FIRST DIVISION

[ G.R. NO. 174144, April 17, 2007 ]

BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS,


RESPONDENT.

DECISION

CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau[1], siblings who
fought bitterly over the inheritance of their father Isaac's estate.
Jurisprudence is also replete with cases involving acrimonious conflicts
between brothers and sisters over successional rights. This case is no
exception.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner


Bella A. Guerrero and respondent Resurreccion A. Bihis, died at the
Metropolitan Hospital in Tondo, Manila.

On May 24, 1994, petitioner filed a petition for the probate of the last will
and testament of the decedent in Branch 95[2] of the Regional Trial Court of
Quezon City where the case was docketed as Sp. Proc. No. Q-94-20661.

The petition alleged the following: petitioner was named as executrix in the
decedent's will and she was legally qualified to act as such; the decedent
was a citizen of the Philippines at the time of her death; at the time of the
execution of the will, the testatrix was 79 years old, of sound and disposing
mind, not acting under duress, fraud or undue influence and was
capacitated to dispose of her estate by will.

Respondent opposed her elder sister's petition on the following grounds:


the will was not executed and attested as required by law; its attestation
clause and acknowledgment did not comply with the requirements of the
law; the signature of the testatrix was procured by fraud and petitioner and
her children procured the will through undue and improper pressure and
influence.

In an order dated November 9, 1994, the trial court appointed petitioner as


special administratrix of the decedent's estate. Respondent opposed
petitioner's appointment but subsequently withdrew her opposition.
Petitioner took her oath as temporary special administratrix and letters of
special administration were issued to her.

On January 17, 2000, after petitioner presented her evidence, respondent


filed a demurrer thereto alleging that petitioner's evidence failed to
establish that the decedent's will complied with Articles 804 and 805 of the
Civil Code.

In a resolution dated July 6, 2001, the trial court denied the probate of the
will ruling that Article 806 of the Civil Code was not complied with because
the will was "acknowledged" by the testatrix and the witnesses at the
testatrix's, residence at No. 40 Kanlaon Street, Quezon City before Atty.
Macario O. Directo who was a commissioned notary public for and in
Caloocan City. The dispositive portion of the resolution read:

WHEREFORE, in view of the foregoing, the Court finds, and so declares


that it cannot admit the last will and testament of the late Felisa Tamio de
Buenaventura to probate for the reasons hereinabove discussed and also in
accordance with Article 839 [of the Civil Code] which provides that if the
formalities required by law have not been complied with, the will shall be
disallowed. In view thereof, the Court shall henceforth proceed with
intestate succession in regard to the estate of the deceased Felisa Tamio de
Buenaventura in accordance with Article 960 of the [Civil Code], to wit:
"Art. 960. Legal or intestate succession takes place: (1) If a person dies
without a will, or with a void will, or one which has subsequently lost its
validity, xxx."

SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the appellate court
dismissed the appeal and affirmed the resolution of the trial court.[4]

Thus, this petition.[5]

Petitioner admits that the will was acknowledged by the testatrix and the
witnesses at the testatrix's residence in Quezon City before Atty. Directo
and that, at that time, Atty. Directo was a commissioned notary public for
and in Caloocan City. She, however, asserts that the fact that the notary
public was acting outside his territorial jurisdiction did not affect the
validity of the notarial will.

Did the will "acknowledged" by the testatrix and the instrumental witnesses
before a notary public acting outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code? It did not.

Article 806 of the Civil Code provides:

ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.
One of the formalities required by law in connection with the execution of a
notarial will is that it must be acknowledged before a notary public by the
testator and the witnesses.[6] This formal requirement is one of the
indispensable requisites for the validity of a will.[7] In other words, a
notarial will that is not acknowledged before a notary public by the testator
and the instrumental witnesses is void and cannot be accepted for probate.

An acknowledgment is the act of one who has executed a deed in going


before some competent officer and declaring it to be his act or deed.[8] In
the case of a notarial will, that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the


instrumental witnesses to declare before an officer of the law, the notary
public, that they executed and subscribed to the will as their own free act or
deed.[9] Such declaration is under oath and under pain of perjury, thus
paving the way for the criminal prosecution of persons who participate in
the execution of spurious wills, or those executed without the free consent
of the testator.[10] It also provides a further degree of assurance that the
testator is of a certain mindset in making the testamentary dispositions to
the persons instituted as heirs or designated as devisees or legatees in the
will.[11]

Acknowledgment can only be made before a competent officer, that is, a


lawyer duly commissioned as a notary public.

In this connection, the relevant provisions of the Notarial Law provide:

SECTION 237. Form of commission for notary public. -The appointment of


a notary public shall be in writing, signed by the judge, and substantially in
the following form:

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________


in said province, was on the ___ day of __________, anno Domini
nineteen hundred and _______, appointed by me a notary public, within
and for the said province, for the term ending on the first day of January,
anno Domini nineteen hundred and _____.

_________________
Judge of the Court of
irst Instance[12] of said
Province

xxx xxx xxx

SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public


in a province shall be co-extensive with the province. The jurisdiction of a
notary public in the City of Manila shall be co-extensive with said city. No
notary shall possess authority to do any notarial act beyond the limits of his
jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in his favor to
perform notarial acts.[13] It is issued "within and for" a particular territorial
jurisdiction and the notary public's authority is co-extensive with it. In
other words, a notary public is authorized to perform notarial acts,
including the taking of acknowledgments, within that territorial jurisdiction
only. Outside the place of his commission, he is bereft of power to perform
any notarial act; he is not a notary public. Any notarial act outside the limits
of his jurisdiction has no force and effect. As this Court categorically
pronounced in Tecson v. Tecson:[14]

An acknowledgment taken outside the territorial limits of the officer's


jurisdiction is void as if the person taking it ware wholly without official
character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in
Quezon City, he lacked the authority to take the acknowledgment of the
testatrix and the instrumental witnesses. In the same vein, the testatrix and
her witnesses could not have validly acknowledged the will before him.
Thus, Felisa Tamio de Buenaventura's last will and testament was, in effect,
not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory or prohibitory


laws shall be void, except when the law itself authorizes their validity.

The violation of a mandatory or a prohibitory statute renders the act illegal


and void unless the law itself declares its continuing validity. Here,
mandatory and prohibitory statutes were transgressed in the execution of
the alleged "acknowledgment." The compulsory language of Article 806 of
the Civil Code was not complied with and the interdiction of Article 240 of
the Notarial Law was breached. Ineluctably, the acts of the testatrix, her
witnesses and Atty. Directo were all completely void.

The Court cannot turn a blind eye to Atty. Directo's participation in the
preparation, execution and unlawful "acknowledgment" of Felisa Tamio de
Buenaventura's will. Had he exercised his notarial commission properly,
the intent of the law to effectuate the decedent's final statements[15] as
expressed in her will would not have come to naught.[16] Hence, Atty.
Directo should show cause why he should not be administratively
sanctioned as a member of the bar and as an officer of the court.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

Let a copy of this decision be furnished the Commission on Bar Discipline


of the Integrated Bar of the Philippines for investigation, report and
recommendation on the possible misconduct of Atty. Macario O. Directo.

SO ORDERED.

G.R. No. 74695 September 14, 1993

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

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 19861 of the First Civil Cases Division of the
then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June
19832 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament3 with codicil4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who
were present at the execution, the testator did not read the final draft of the will himself. Instead,
private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977.
On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado"
was executed changing some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not personally read the final draft
of the codicil. Instead, it was private respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3
January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial
Court, of Siniloan, Laguna.5Petitioner, in turn, filed an Opposition on the following grounds: that the
will sought to be probated was not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility
and old age; that the will was executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part of the beneficiary who stands to
get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured
by fraud or trick.

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

On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of the drafted will was
served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at
the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading
requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally
blind at the time the will and codicil were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute),6 the contents
of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent.7 Dr. Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the
day of his first consultation.8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator
could still read on the day the will and the codicil were executed but chose not to do so because of
"poor eyesight."9 Since the testator was still capable of reading at that time, the court a
quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of reading at the
time his will and codicil were prepared, the fact remains and this was testified to by his witnesses,
that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred"12 vision making it
necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for
one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been
complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the
five-paged codicil who read the same aloud to the testator, and read them only once, not twice as
Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of
the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity
to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido answered
in the affirmative. 16 With four persons following the reading word for word with their own copies, it
can be safely concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually appearing on
the typewritten documents. This is especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente)
and another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.