30. Miciano vs.

Brimo 50 Phil 867

FACTS: A will of a Turkish testator (Joseph Brimo) provided that his Philippine estate is
disposed of in accordance with the Philippine Law. The testator further provided that
whoever fails to comply with this request (that his estate be distributed in accordance with
Philippine law) would forfeit his inheritance. The Appellant (Andre Brimo), one of the
brothers of the deceased Joseph Brimo, opposed the Appellee (Juan Miciano)'s partition
scheme of the estate which denies his participation in the inheritance.

ISSUE: Whether the Turkish Law or Philippine Law be the basis on the distribution of
Joseph Brimo's estates. Will Andre Brimo forfeit his inheritance?

RULING: The court held that the provision of a foreigner's will that his properties shall be
distributed according to Philippine law and not his national law is NOT LEGAL because it
expressly ignores the testator's national law when, according to article 16 of the civil
Code, such national law of the testator is the one to govern his testamentary
dispositions. Testator’s estate shall be distributed according to his national (Turkish) law.
He cannot provide otherwise. The appellant's inheritance will not be forfeited because the
provision is not legal. Even if the testator’s wishes must be given paramount importance, if
the wishes of the testator contravene a specific provision of law, then that
provision in a will should not be given effect. A person’s will is merely an instrument
which is PERMITTED, so his right is not absolute. It should be subject to the provisions of
the Philippine laws. The estate of a decedent shall be distributed in accordance
with his national law. He cannot provide otherwise. The SC held that those who
opposed would not forfeit their inheritance because that provision is not legal.

Cayetano vs Leonidas
FACTS: The testatrix was an American citizen at the time of her death and was a permanent resident of
Pennsylvania, U.S.A.; that the testatrix died in Manila while temporarily residing with her sister; that during
her lifetime, the testatrix made her last will and testament according to the laws of Pennsylvania, U.S.A.;
that after the testatrix death, her last will and testament was presented, probated, allowed, and registered
with the Registry of Wills at the County of Philadelphia, U.S.A. An opposition to the reprobate of the will
was filed by herein petitioner alleging among other things that the intrinsic provisions of the will are null
and void. The petitioner maintains that since the respondent judge allowed the reprobate of Adoracion’s
will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.
ISSUES
[1]Whether or not the Philippine law will apply to determine the intrinsic validity of a will executed by an
undisputed foreigner.

[2] Whether or not Philippine law will apply to determine the capacity to succeed of Adoracion’s heirs.

RULING
[1] NO. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for
by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was
squarely applied in the case of Bellis v. Bellis (20 SCRA 358).“It is therefore evident that whatever public
policy or good customs may be involved in our system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent’s national law. Specific provisions must prevail over
general ones.”

[2] NO. Capacity to succeed is governed by the law of the nation of the decedent. (Article 1039, Civil
Code) The law which governs Adoracion Campo’s will is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for
legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner
argues that such law should not apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine Law.

POLLY CAYETANO, petitioner,

vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

FACTS:

Adoracion C. Campos, in her lifetime, was a citizen of the United States of America and a permanent
resident of Philadelphia. She executed a Last Will and Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the laws thereat, and that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the City of Manila, leaving property both in the Philippines and
in the United States of America. The Last Will and Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said
foreign country on procedure and allowance of wills. Nenita C. Paguia, daughter or the testator, was
appointed Administratrix of the estate of said decedent.

This was opposed by Adoracion’s father, Hermogenes Campos, who earlier filed an Affidavit of Self-
adjudication not being aware that Adoracion had left a will. He later died and was substituted by Polly
Cayetano as petitioner in the instant case.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.

Cayetano alleged that the trial court erred in ruling that the right of a forced heir to his legitime can be
divested by a decree admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession.

ISSUE:Whether or not a forced heir is entitled to his legitime in case the testator was a citizen of another
country.
RULING:No. Applying Article 16 par. (2) and 1039 of the Civil Code, the law which governs Adoracion
Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the
parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be
given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply
because it would be contrary to the sound and established public policy and would run counter to the
specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the
decedent must apply.

Dacanay v. Florendo

SUMMARY: Tirso Dacanay is seeking to probate a joint and reciprocal will with his
deceased wife Isabel Florendo. The will provides that he will inherit all the properties of
Florendo. The relative of Florendo opposed the probate. The trial court dismissed the
petition for probate on the ground that the said will is null and void ab initio for violating
Art 669 of the Civil Code. Dacanay argues that the prohibition of Art 669 is against joint
wills and not reciprocal wills and that Art 669 is already repealed, contending that whether
two wills should be executed conjointly or separately is but a matter of extrinsic formality.
The Court affirmed the ruling of the trial court and held that the reason for the provisions
is that when a will is made jointly or in the same instrument, the spouse who is more
aggressive, stronger in will or character and dominant is liable to dictate the terms of the
will for his or her own benefit or for that of third persons whom he or she desires to favor.
And, where the will is not only joint but reciprocal, either one of the spouses who may
happen to be unscrupulous, wicked, faithless or desperate, may be tempted to kill or
dispose of the other. The Court ruled that considering the wisdom of the provision and that
fact that it is not yet expressly repealed, Art 669 is still in force.

DOCTRINE: The provision of article 669 of the Civil Code prohibiting the execution of a
will by two or more persons conjointly or in the same instrument either for their reciprocal
benefit or for the benefit of a third person, is not unwise and is not against public policy.

The reason for this provision, especially as regards husband and wife, is that when a will is
made jointly or in the same instrument, the spouse who is more aggressive, stronger in will
or character and dominant is liable to dictate the terms of the will for his or her own
benefit or for that of third persons whom he or she desires to favor.

And, where the will is not only joint but reciprocal, either one of the spouses who may
happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the
terms of the will whereby the whole property of the spouses both conjugal and paraphernal
goes to the survivor, may be tempted to kill or dispose of the other.

FACTS: Tirso Dacanay is seeking to probate a joint and reciprocal will with his deceased
wife Isabel V. Florendo. The will provides in substance that whoever of the spouses, joint
testators, shall survive the other, shall inherit all the properties of the latter, with an
agreement as to how the surviving spouse shall dispose of the properties in case of his or
her demise. The relative of deceased Isabel Florendo opposed the probate of said will on
various statutory grounds. Trial court issued an order dismissing the petition for probate
on the ground that the said will is null and void ab initio having been executed in violation
of Art 669, CC.

ISSUE: Whether the joint and reciprocal will of the spouses is void?

 Dacanay’s arguments:
o The prohibition of Article 669 of the Civil Code is directed against the execution of a
joint will, or the expression by two or more testators of their wills in a single
document and by one act, rather than against mutual or reciprocal wills, which may
be separately executed.
o Upon this premise, however, he argues that Article 669 has been repealed by Act.
No. 190, which he claims provides for and regulates the extrinsic formalities of
wills, contending that whether two wills should be executed conjointly or separately
is but a matter of extrinsic formality.

RULING: YES. The Court cites the case “In re Will of Victor Bilbao,” which involves a
joint will executed also by the spouses. The petitioning spouse also forwarded the same
argument -- that Art 669 of the Civil Code has been repealed by Secs. 614 and 618 of the
Code of Civil Procedure, Act No. 190.
 In that case, the Court said, through Mr. Justice Montemayor:
o The provision of article 669 of the Civil Code prohibiting the execution of a will
by two or more persons conjointly or in the same instrument either for their
reciprocal benefit or for the benefit of a third person, is not unwise and is not
against public policy.
o The reason for this provision, especially as regards husband and wife, is that
when a will is made jointly or in the same instrument, the spouse who is more
aggressive, stronger in will or character and dominant is liable to dictate
the terms of the will for his or her own benefit or for that of third persons
whom he or she desires to favor.
o And, where the will is not only joint but reciprocal, either one of the spouses who
may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or
she does the terms of the will whereby the whole property of the spouses both
conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of
the other.
o Considering the wisdom of the provisions of this article 669 and the fact that it has
not been repealed, at least not expressly, as well as the consideration that its
provisions are not incompatible with those of the Code of Civil Procedure on the
subject of wills, we believe and rule that said article 669 of the Civil Code is
still in force.
o The Court is not alone in this opinion. The following cites that the articles is still in
force:
 Mr. Justice Willard as shown by his Notes on the Civil Code, believes that this
article 669 is still in force.
 Sinco and Capistrano in their work on the Civil Code, Vol. II, favorably cite
Justice Willard's opinion that this article is still in force.
 Judge Camus in his book on the Civil Code does not include this article among
those he considers repealed.
o Lastly, we find that this article 669 has been reproduced word for word in article
818 of the New Civil Code (Republic Act No. 386). The implication is that the
Philippine Legislature that passed this Act and approved the New Civil Code,
including the members of the Code Commission who prepared it, are of the opinion
that the provisions of article 669 of the old Civil Code are not incompatible with
those of the Code of Civil Procedure.
NOTES: Art 669, CC: Two or more persons cannot make a will conjointly or in the same
instrument, either for their reciprocal benefit or for the benefit of a third person. Art 818,
NCC: Two or more persons cannot make a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person. Art 819, NCC: Wills, prohibited
by the preceding article, executed by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the country where they may have been
executed.

TESTATE ESTATE OF ABADA vs. ABAJA

G. R. no. 147145 31 January 2005

FACTS: Abada and his wife Toray died without legitimate children. Abaja, filed with CFI of Negros
Occidental a petition for probate of the will of Abada. The latter allegedly named as his testamentary
heirs his natural children, Eulogio Abaja and Rosario Cordova. (respondent Abaja was the son of Eulogio).
One Caponong opposed the position on the ground that Abaja left no will when he died and if such was
really executed by him it should be disallowed for the following reasons: (1) it was not executed and
attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured
by undue and improper pressure and influence on the part of the beneficiaries. Citing the same grounds
invoked by Caponong, the alleged intestate heirs of Abada, Joel Abada et. al. also opposed the petition.
The oppositors are the nephews, nieces and grandchildren of Abada and Toray.
Respondent Abaja filed another petition for the probate will of Toray. Caponong and Joel Abada et. al
opposed the petition on the same grounds. Caponong likewise filed a petition praying for the issuance in
his name of letters of administration of the intestate estate of Abada and Toray. RTC admitted the
probate will of Toray since the oppositors did not file any motion for reconsideration, the order allowing
the probate of Toray’s will became final and executory. The court also assigned one Caponong-Noble as
special administratix of the estate of Abada and Toray. Caponong –Noble moved for the dismissal of the
petition for the probate will of Abada which was denied by the Court. During the proceeding, the judge
found out that the matter on hand was already submitted for decision by another judge admitting the
probate will of abada. Since proper notices to the heirs has been complied with as well as other
requirements, the judge ruled in favor of the validity of the probate will. RTC ruled only on the issue
raised by the oppositors in their motions to dismiss the petition for probate that is whether the will of
Abada has an attestation clause as required by law. It held that the failure of the oppositors to raise any
other matter forecloses all other issues. Caponong-Noble filed a notice of appeal. CA affirmed RTC’s
decision.

ISSUE: Whether or not the CA ruled in sustaining the RTC admitting the probate will of Abada.

HELD: No, CA is correct. Caponong-Noble proceeds to point out several defects in the attestation clause.
Caponong-Noble alleges that the attestation clause fails to state the number of pages on which the will is
written. The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos
hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of the
two pages consisting of the same" shows that the will consists of two pages. The pages are numbered
correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase "las cuales estan
paginadas correlativamente con las letras "UNO" y "DOS." Caponong-Noble further alleges that the
attestation clause fails to state expressly that the testator signed the will and its every page in the
presence of three witnesses. She then faults the Court of Appeals for applying to the present case the
rule on substantial compliance found in Article 809 of the New Civil Code. The first sentence of the
attestation clause reads: "Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las hojas del mismo." The English translation is: "Subscribed
and professed by the testator Alipio Abada as his last will and testament in our presence, the testator
having also signed it in our presence on the left margin of each and every one of the pages of the same."
The attestation clause clearly states that Abada signed the will and its every page in the presence of the
witnesses. However, Caponong-Noble is correct in saying that the attestation clause does not indicate
the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on
substantial compliance in determining the number of witnesses. While the attestation clause does not
state the number of witnesses, a close inspection of the will shows that three witnesses signed it.This
Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code.
An attestation clause is made for the purpose of preserving, in permanent form, a record of the
facts attending the execution of the will, so that in case of failure of the memory of the subscribing
witnesses, or other casualty, they may still be proved. A will, therefore, should not be rejected where its
attestation clause serves the purpose of the law. x x x
We rule to apply the liberal construction in the probate of Abada’s will. Abada’s will clearly
shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there
are three witnesses to the will. The question on the number of the witnesses is answered by an
examination of the will itself and without the need for presentation of evidence aliunde. The Court
explained the extent and limits of the rule on liberal construction, thus:
The so-called liberal rule 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.lThey only permit a probe into the will, an
exploration within its confines, to ascertain its meaning or to determine the existence or absence of
the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish
any fear of dire results. The phrase "en presencia de nosotros" or "in our presence" coupled with the
signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada
subscribed to and professed before the three witnesses that the document was his last will, and (2)
Abada signed the will and the left margin of each page of the will in the presence of these three
witnesses. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the
circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the
testator and of each other. The last part of the attestation clause states " en testimonio de ello, cada uno
de nosotros lo firmamos en presencia de nosotros y del testador." In English, this means "in its witness,
every one of us also signed in our presence and of the testator." This clearly shows that the attesting
witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the
presence of one another and of the testator.

SUROZA v. HONRADO
110 SCRA 381 (1981)

FACTS: Marcelina Suroza supposedly executed a notarial will in July 1973 when she
was 73 years old. The will, which was in English, was thumbmarked by Marcelina,
who was illiterate. Upon her death, the will which bequeathed all her estate to a
supposed granddaughter was presented for probate. Opposition to the probate was
made by Nenita Suroza, the wife of the alleged adopted son of Marcelina on the ground
of preterition of said son, Agapito, and on the ground that the will was void because
Marcelina did not appear before a notary public and because it is written in English
which is not known to Marcelina. The presiding judge denied the opposition of Nenita
Suroza and admitted the will to probate.

ISSUE: Was there sufficient evidence on record to show that the will on its face was
void?

HELD: Upon perusing the will and noting that it was written in English and was
thumb marked by an obviously illiterate testatrix, respondent Judge could have
readily perceived that the will is void. In the opening paragraph of the will, it was
stated that English was a language “understood and known” to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the testatrix “and
translated into Filipino language.” That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of Article 804 of the Civil Code that every will must be executed
in a language or dialect known to the testator. Thus, a will written in English, which
was not known to the Igorot testator, is void (Acop v. Piraso, 52 Phil.660). “What
constitutes a Signature”: A complete signature is not essential to the validity of a will.
Perhaps to provide for greater authenticity, what should be found at the end of the will
is the testator’s customary signature. However, since the law does not require his full
signature, the initials or even a thumb mark by the testator may be deemed sufficient
to comply with this requirement. A thumb mark at the end of the will may be
considered as a valid signature especially when a testator cannot affix his signature
due to some medical condition such as paralysis.

Suroza v. Honrado 110 SCRA 388

FACTS: Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a
boy named Agapito. Agapito and his wife Nenita de Vera had a daughter named Lilia.
Nenita became Agapito’s guardian when he became disabled. A certain Arsenia de la
Cruz also wanted to be his guardian in another proceeding but it was dismissed. Arsenia
then delivered a child named Marilyn Sy to Marcelina who brought her up as a supposed
daughter of Agapito. Marilyn used the surname Suroza although not legally adopted by
Agapito. When Marcelina (who was an illiterate) was 73 years old, she supposedly
executed a notarial will which was in English and thumbmarked by her. In the will, she
allegedly bequeathed all her properties to Marilyn. She also named as executrix her
laundrywoman, Marina Paje. Paje filed a petition for probate of Marcelina’s will. Judge
Honrado appointed Paje as administratrix and issued orders allowing the latter to
withdraw money from the savings account of Marcelina and Marilyn, and instructing
the sheriff to eject the occupants of testatrix’s house, among whom was Nenita. She and
the other occupants filed a motion to set aside the order ejecting them, alleging that
Agapito was the sole heir of the deceased, and that Marilyn was not the decedent’s
granddaughter. Despite this, Judge Honrado issued an order probating Marcelina’s will.
Nenita filed an omnibus petition to set aside proceedings, admit opposition with
counter-petition for administration and preliminary injunction, and an opposition to
the probate of the will and a counter-petition for letters of administration, which were
dismissed by Judge Honrado. Instead of appealing, Nenita filed a case to annul the
probate proceedings but Judge Honrado dismissed it. The judge then closed the
testamentary proceeding after noting that the executrix had delivered the estate to
Marilyn, and that the estate tax had been paid.

Ten months later, Nenita filed a complaint before the SC, charging Judge Honrado with
having probated the fraudulent will of Marcelina. She reiterated her contentionthat the
testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will
and that she did not know English, the language in which the will was written. She
further alleged that Judge Honrado did not take into account the consequences of the
preterition of testatrix’s son, Agapito. Judge Honrado in his comment did not deal
specifically with the allegations but merely pointed to the fact that Nenita did not appeal
from the decree of probate and that in a motion, she asked for a thirty day period within
which to vacate the house of the testatrix. Nenita subsequently filed in the CA a petition
for certiorari and prohibition against Judge Honrado wherein she prayed that the will,
the decree of probate and all the proceedings in the probate case be declared void. The
CA dismissed the petition because Nenita’s remedy was an appeal and her failure to do
so did not entitle her to resort to the special civil action of certiorari. Relying on
that decision, Judge Honrado filed a MTD the administrative case for having allegedly
become moot and academic.

ISSUE: W/N disciplinary action be taken against respondent judge for having admitted
to probate a will, which on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably a forged will because she and the
attesting witnesses did not appear before the notary as admitted by the notary himself.

HELD: YES. Respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have readily
perceived that the will is void. In the opening paragraph of the will, it was stated that
English was a language “understood and known” to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix “and translated into
Filipino language”. That could only mean that the will was written in a language not
known to the illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed in a language
or dialect known to the testator.

The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
“testator” instead of “testatrix”. Had respondent judge been careful and observant, he
could have noted not only the anomaly as to the language of the will but also that there
was something wrong in instituting the supposed granddaughter as sole heiress and
giving nothing at all to her supposed father who was still alive. Furthermore, after the
hearing conducted by the deputy clerk of court, respondent judge could have noticed
that the notary was not presented as a witness. In spite of the absence of an opposition,
respondent judge should have personally conducted the hearing on the probate of the
will so that he could have ascertained whether the will was validly executed.

Matias v. Salud G.R. No. L-10751, 23 June 1958

FACTS: The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina
Raquel was suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix,
which made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina
attempted to sign, but since it was so painful she just managed to thumbmarked the foot of the
document and the left margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not be regarded as the
decedent’s valid signature as it does not show distinct identifying ridgelines. And since the finger
mark was an invalid signature, there must appear in the attestation clause that another person
wrote the testator’s name at his request.

ISSUE: W/N the will was valid.

HELD: YES. As to the clarity of the ridge impressions, it is so dependent on

aleatory requirements as to require dexterity that can be expected of very few persons; testators
should not be required to possess the skill of trained officers.And as to the validity of the
thumbprints as signature, the SC held that it has been held in a long line of cases that a
thumbprint is always a valid and sufficient signature for the purpose of complying with the
requirement of the article. Furthermore, the validity of thumbprints should not be limited in cases
of illness or infirmity. A thumbprint is considered as a valid and sufficient signature in complying
with the requirements of the article.

GARCIA v. LACUESTA
90 Phil 189 (1951)

FACTS: The will is written in the Ilocano dialect and containsthe following attestation
clause: “We, the undersigned, by these presents do 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.” 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.
ISSUE: Was the will in compliance with Article 805?

HELD: No. The Supreme Court in affi rming the ruling of the Court of Appeals held
that 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 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 v. Gonzales and Ona, 53 Phil., 104; Dolar v. Diancin, 55 Phil., 479; Payad v.
Tolentino, 62 Phil., 848; Neyra v. Neyra, 76 Phil., 296 and Lopez v. 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 refl ection, 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.
Meaning of “in the presence of” : Presence of the witnesses depends upon the
opportunity of the witnesses to see the execution of the will. “In the presence of each
other” does not depend upon proof of the fact that the eyes of the witnesses were
precisely cast upon the instrument at the moment of each and every subscription. “In
the presence of each other” depends on existing conditions and positions of the
witnesses in relation to each other such that by merely casting their eyes in the proper
direction, they could have seen each other sign, without changing their relative
positions or existing conditions.

TABOADA v. ROSAL
118 SCRA 195 (1982)

FACTS: Petitioner Taboada presented for probate the alleged last will and testament
of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of 2
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 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 3 attesting
witnesses and at the left hand margin by the testatrix. The respondent Judge denied
probate of the will for want of formality in its execution, that is, that the 3 subscribing
witnesses did not sign at the same place or at the end of the will as the testator did.

ISSUE: 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?

HELD: It must be noted that Article 805 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.
Insofar as the requirement of subscription is concerned, it is our considered view that
the will was subscribed in a manner which fully satisfies the purposes of
identification. The signatures of the instrumental witnesses on the left margin of the fi
rst 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 clauses. 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. 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 the subscribing witness to be the same will executed by the
testatrix. “Placement of Attesting Signature”: The attesting signature of the testator
must be found at the logical end of the will, otherwise the will is void. The attesting
signature of the witnesses must be found at the end of the attestation clause,
otherwise the will is void.

Icasiano vs. Icasiano

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

Facts: Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and
for his appointment as executor thereof. It appears from the evidence that the testatrix
died on September 12, 1958. She executed a will in Tagalog, and through the help of her
lawyer, it was prepared in duplicates, an original and a carbon copy. On the day that it
was subscribed and attested, the lawyer only brought the original copy of the will while
the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign
one of the pages in the original copy but admitted he may have lifted 2 pages
simultaneously instead when he signed the will. Nevertheless, he affirmed that the will
was signed by the testator and other witnesses in his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his
signature to a page is sufficient to deny probate of the will

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

The law should not be strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she has no control of.
Where the purpose of the law is to guarantee the identity of the testament and its
component pages, and there is no intentional or deliberate deviation existed.
Note that this ruling should not be taken as a departure from the rules that the will
should be signed by the witnesses on every page. The carbon copy duplicate was regular
in all respects.

Icasiano v. Icasiano
11 SCRA 422

FACTS:

Celso Icasiano filed a petition for the allowance and admission to probate of the alleged
will of Josefa Villacorte, and for his appointment as executor thereof. Natividad and
Enrique Icasiano, a daughter and son of the testatrix, filed their opposition thereto.
During the course of the trial, on 19 March 1959, Celso, started to present his evidence.
But later, on 1 June 1959, he then filed an amended and supplemental petition, alleging
that the decedent had left a will executed in duplicate and with all the
legal requirements, and that he was submitting the duplicate to the court, which he
found only on 26 May 1959. Natividad and Enrique filed their opposition, but the will
and its duplicate was admitted to probate by the trial court. Hence, this appeal by the
oppositors.

Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to

the effect that the signatures of the testatrix in the duplicate 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.

ISSUE:

Was the trial court correct in admitting the will and its duplicate to probate given the
allegations of forgery of the testator’s signature, or that the will was executed under
circumstances constituting fraud and undue influence and pressure?

(Not raised by the appellants in the case but discussed by the Court and in Sir’s
book) Is the failure of one of the witnesses to sign a page of the will fatal to its validity?

HELD:
The Supreme Court dismissed the appeal, holding that both the will and its duplicate are
valid in all respects.

On the allegations of forgery, fraud and undue influence:

The Court is satisfied that all the requisites for the validity of a will have been complied
with. The opinion of a handwriting expert trying to prove forgery of the testatrix’s
signature failed to convince the Court, not only because it is directly contradicted by
another expert but principally because of the paucity of the standards used by him (only
three other signatures), considering the advanced age of the testatrix, the evident
variability of her signature, and the effect of writing fatigue.

Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering that standard and
challenged writings were affixed to different kinds of paper, with different surfaces and
reflecting power. On the whole, the testimony of the oppositor’s expert is insufficient to
overcome that of the notary and the two instrumental witnesses as to the will’s
execution, which were presented by Celso during the trial.

Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither. Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well die intestate. The
testamentary disposition 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 occasion. It is also well to note that 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 failure of a witness to sign a page in the original, but signed all pages in the
duplicate:

The records show that the original of the will 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 3 thereof; but the duplicate copy attached to
the amended and supplemental petition is signed by the testatrix and her three attesting
witnesses in each and every page.

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

The failure Atty. 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 attestationclause and the
acknowledgment before the Notary Public likewise evidence that no one was aware of
the defect at the time. Therefore, Atty. Natividad’s failure to signpage 3 of the original
through mere inadvertence does not affect the will’s validity.

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.

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 mark 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 bad 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 is not entitled to probate. Since they opposed probate of the 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, 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 serves to
prove that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.