Cruz v Villasor, 54 SCRA 31

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

One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged.
Despite the objection, the lower court admitted the will to probate on the ground that there is
substantial compliance with the legal requirements of having at least 3 witnesses even if the notary
public was one of them.

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

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

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

Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a
function defeated if he were to be one of the attesting or instrumental witnesses. He would be
interested in sustaining the validity of the will as it directly involves himself and the validity of his own
act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which
is to minimize fraud.