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NERI v AKUTIN received cash advances from him. But, to my mind, there can be no doubt that there was preterition of the testator's
74 PHIL 185
MORAN; May 21, 1943
NATURE
Petition for review on certiorari
FACTS
- Testator Neri indicated in his will that he was leaving all of his properties by universal title to his children by his second
marriage with preterition of his children by his first marriage.
- Eleuterio, Agripino, Agapita, Getulia, Rosario and Celerina are all Neri’s children by his first marriage.
- The trial court annulled the institution of the heirs and declared total intestacy.
- The children by the second marriage filed a motion for reconsideration on the grounds that:
1) there is no preterition as to the children of the first marriage have received their shares in the property left by the
testator
2) assuming that there has been a preterition, the effect would not be the annulment of the institution of heirs but simply
the reduction of the bequest made to them.
- The children by the second marriage anchor their argument on the concept of “heir” whose A814 definition is deemed
repealed by that of the Code of Civil Procedure. It is maintained that the word "heredero" under the Civil Code, is not
synonymous with the term "heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is no
longer personally liable for the debts of the deceased as was the "heredero" under the Civil Code
ISSUES
1. WON there is preterition
2. WON there should be annulment of the institution of the heirs and open the estate to total intestacy
HELD
1. YES, there is preterition
- According to the court’s findings, none of the children by the first marriage received their respective shares from the
testator’s property
- Even if clause 8 of the will is invoked (said clause states that the children by his first marriage had already received
their shares in his property excluding what he had given them as aid during their financial troubles and the money they
had borrowed from him) the Court can rely only on the findings of the trial court that the inventory indicates that the
property of Neri has remained intact and that no portion has been given to the children of the first marriage.
- Neri left his property by universal title to the children by his second marriage and did not expressly disinherit his
children by his first marriage but did not leave anything to them. This fits the case of preterition according to A814, CC
which provides that the institution of heirs shall be annulled and intestate succession should be declared open.
2. YES
- The word "heir" as used in A814 of the Civil Code may not have the meaning that it has under the Code of Civil
Procedure, but this does prevent a bequest from being made by universal title as is in substance the subject-matter of
A814 of the Civil Code.
- It may also be true that heirs under the Code of Civil Procedure may receive the bequest only after payment of debts
left by the deceased and not before as under the Civil Code, but this may have a bearing only upon the question as to
when succession becomes effective and can in no way destroy the fact that succession may still be by universal or
special title.
- Since a bequest may still be made by universal title and with preterition of forced heirs, its nullity as provided in article
814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. The basis for its nullity is the
nature and effect of the bequest and not its possible name under the Code of Civil Procedure.
- In addition, Secs. 755 and 756 of the Code of Civil Procedure affected A814 and A851 of the Civil Code. But these
sections have been expressly repealed by Act No. 2141, thus restoring force to A814 and A851.
OZAETA [concur]
- Whether or not there was preterition of the testator's surviving children by his first marriage, may not be entirely
beyond dispute, because it is not altogether improbable that, before the testator made his will said children of his had
page 1
grandchildren by his daughter Getulia, who died long before the testator made his will. These lineal descendants of the
testator, who are also forced heirs of his, were completely ignored and omitted in the will.
- In the absence of proof it cannot be presumed that the testator made the declarations in bad faith - that he made them
knowing that it was not true that he had given each of his surviving children by his first wife at least an equal if not a
greater share in his inheritance than what he left to each of his children by his second wife.
- But if he had made those declarations in bad faith or as a subterfuge to deprive his children and grandchildren by his
first marriage of their legal share in his inheritance, he could only have done so with the intention to frustrate their right.
In that case the preterition would only assume a different form, voluntary instead of involuntary. But the result would be
the same.
BOCOBO [dissent]
- There is no preterition because the findings of both the Court of First Instance and of the Court of Appeals show that all
the children of the first marriage have received, in property and in cash, a part of their short legitime. One of the
requisites of preterition is that one or some of the heirs of the direct line be totally deprived of their legitime.
- The children of the first marriage not having been entirely forgotten, the will should be respected and carried out, but
the children of the first marriage should have their respective shares in the strict legitime completed after taking into
account the amounts already received by them from their father.
- But granting that there was a preterition because one or some of the children of the first marriage never received, by
donation inter vivos or by will, anything from their father, it is clear from the will in question that the children of the
second marriage are entitled to the third for free disposal and to the third for mejora (in addition to their share in the strict
legitime.
- "Anulará la institución de heredero" does not mean that the whole will is of no effect. It merely nullifies the clause
designating the children of the second marriage. As the only "herederos" or continuers of the testator's personality and
in the place of such clause, article 814 orders that all the children, of both marriages, shall be such continuers of Neri's
personality. This does not mean that all the children shall divide the whole estate equally, by the rules of intestacy. It
simply signifies that the children of both marriages become continuers of Neri's personality, and as such liable
personally for all of Neri's obligations, so that, under the system of the Spanish Civil Code, which distinguishes
"herederos" from "legatarios," all the children are liable personally for the debts of their father, even beyond and in
excess of the property received by each of them.
ALVAREZ v IAC (YANES)
185 SCRA 8
FERNAN; May 7, 1990
NATURE
Petition for review on certiorari
FACTS
- Two parcels of land were registered in the names of the heirs of Aniceto Yanes, under an Original Certificate of Title.
- Fortunato D. Santiago was issued a Transfer Certificate of Title. Santiago then sold the lots to Monico B. Fuentebella,
Jr. The lots were sold thereafter Rosendo Alvarez.
- The Yaneses filed a complaint against Santiago, Arsenia Vda. de Fuentebella, Alvarez and the Register of Deeds of
Negros Occidental for the "return" of the ownership and possession of the lots, and prayed for an accounting of the
produce of the land from 1944 up to the filing of the complaint, and that the share or money equivalent due the heirs be
delivered to them, and damages.
- During the pendency of the case, Alvarez sold the lots to Dr. Rodolfo Siason.
-
The CFI ordered Alvarez to reconvey and deliver the possession of the lots to the Yaneses. However, execution of said
decision proved unsuccessful with respect to one of the lots, as it had been subdivided into two and that that they were
"in the name" of Rodolfo Siason who had purchased them from Alvarez, and that the lot could not be delivered to the
plaintiffs as Siason was "not a party per writ of execution."
- The Yaneses filed a petition for the issuance of a new certificate of title and for a declaration of nullity of the TCTs
issued to Rosendo Alvarez. The court required Rodolfo Siason to produce the certificates of title covering the lots, which
order was later nullified by the court in view of a manifestation filed by Siason.
 SUCCESSION A2010
- the lower court found Siason as a buyer in good faith, and ordered the heirs of Alvarez to pay the Yaneses the actual
value of the lots, plus damages. The IAC affirmed except as to damages.
- Petitioners contend, among others, that the liability arising from the sale of the lots made by Rosendo Alvarez to Dr.
Rodolfo Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death.
ISSUE
WON the liability arising from the sale of the lots made by Rosendo Alvarez to Dr. Rodolfo Siason should be the sole
liability of the late Rosendo Alvarez or of his estate, after his death.
HELD
NO.
- It overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and obligations of the
deceased to his legitimate children and heirs. Under our law, the general rule is that a party's contractual rights and
obligations are transmissible to the successors.
- The pertinent provisions of the Civil Code state:
Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through his death to another or others either by his will or by
operation of law.
Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his
death.
Art. 1311. Contract stake effect only between the parties, their assigns and heirs except in case where the rights and
obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The
heir is not liable beyond the value of the property received from the decedent.
- Estate of Hemady vs. Luzon Surety Co., Inc.: The binding effect of contracts upon the heirs of the deceased party is
not altered by the provision of our Rules of Court that money debts of a deceased must be liquidated and paid from his
estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made
from the state is ultimately a payment by the heirs or distributees, since the amount of the paid claim in fact diminishes
or reduces the shares that the heirs would have been entitled to receive.
- The general rule (above) is a consequence of the progressive "depersonalization" of patrimonial rights and duties that,
as observed by Victorio Polacco, “has characterized the history of these institutions. From the Roman concept of a
relation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the persons
occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is
contracted intuitu personae, in consideration of its performance by a specific person and by no other.”
- Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's
transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved is of
no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary
estate, and hereditary assets are always liable in their totality for the payment of the debts of the estate.It must,
however, be made clear that petitioners are liable only to the extent of the value of their inheritance.
VITUG v CA (ROWENA FAUSTINO-CORONA)
183 SCRA 755
SARMIENTO; March 29, 1990
NATURE
This case is a chapter in an earlier suit involving the probate of the two wills of the late Dolores Luchangco Vitug naming
private respondent Rowena Faustino-Corona executrix. In that case, the appointment of Nenita Alonte as co-special
administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate was
upheld.
FACTS
- Jan.13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of
stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of
P667,731.66, plus interests, which he claimed were personal funds (as found by CA, the alleged advances consisted of
P58,147.40 estate tax, P518,834.27 deficiency estate tax, and P90,749.99 as increment thereto).
page 2
- April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from one of
the savings account were conjugal partnership properties and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for
"concealment of funds belonging to the estate."
- Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement
executed with his late wife and the bank on June 19, 1970, where it was stipulated that all the money that will be
deposited by either of them (Romarico and Dolores) in their joint savings current account shall be their property, and
after the death of either of them shall belong to and be the sole property of the survivor.
- The trial courts upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores, the
proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ."
- On the other hand, the CA, in the petition for certiorari filed by Rowena, held that the above-quoted survivorship
agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed
by Article 805 of the Civil Code," and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation
under the provisions of Article 133 of the Civil Code, setting aside the order granting Romarico’s motion to sell properties
of Dolores for reimbursement of his alleged advances to the estate.
- Romarico assails CA’s ruling on the strength of Rivera v. People's Bank and Trust Co. and Macam v. Gatmaitan
sustaining the validity of "survivorship agreements" and considering them as aleatory contracts.
ISSUE
WON the survivorship agreement constitutes a conveyance mortis causa.
HELD
NO.
- The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been
defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and
rights and declares or complies with duties to take effect after his death." In other words, the bequest or device must
pertain to the testator. In this case, the monies subject of the savings account were in the nature of conjugal funds.
- In the Rivera case, the court rejected claims that a survivorship agreement purports to deliver one party's separate
properties in favor of the other, but simply, their joint holdings
- In the Macam case, it was held that the agreement is an aleatory contract whereby, according to article 1790 of the
Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that
which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an
indeterminate time.
- There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal,
having been acquired during the existence of the marital relations.
- Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after
the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a
spouse's own properties to the other.
- Also, the agreement involves no modification petition of the conjugal partnership, as held by the CA, by "mere
stipulation" and that it is no "cloak" to circumvent the law on conjugal property relations as the spouses are not
prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly
denominated in banking parlance as an "and/or" account. In the case at bar, the spouses Vitug did not dispose of
property in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the
funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in
the money pool.
- The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract
imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code under
Article 20101
- While the court has warned that although the survivorship agreement is per se not contrary to law its operation or
effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to
hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be
1
ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall
give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.
 SUCCESSION A2010
assailed and annulled upon such grounds, there is no demonstration in this case that the survivorship agreement had
been executed for such unlawful purposes.
MONTINOLA v HERBOSA
CA REP 2ND 377
CAPISTRANO; 1963
NATURE
Appeal from a judgment of the CFI Manila
FACTS
Montinola filed this action against the heirs of Jose Rizal for the recovery of possession of personal property (the RIZAL
RELICS) allegedly sold to him by Dona Trinidad Rizal. The trial court held that neither party is entitled to possession of
property, relying principally on the fact that in Rizal’s MI ULTIMO ADIOS, there was a stanza where Rizal allegedly
bequeathed all his property to the Filipino people: “Sintang Pilipinas, lupa kong hinirang…Huling paalam ko’t
sayo’y iiwan. Ang lahat at madlang iniwan sa buhay.” The handwritten work of Rizal to the mind of the trial court
constitutes a holographic will giving to the State all his property.
(The Court also relied on the enforceability of Spanish judgment convicting Rizal and adjudging in favor of the state
P100,000 as indemnity as another basis for holding that it is the State that had superior lien over Rizal’s property but for
our purposes, only the issue of succession is herein discussed)
ISSUE
WON Rizal’s MI ULTIMU ADIOS which was handwritten by Rizal is a holographic will, which bequeaths to the State all
his property (the Rizal relics).
HELD
- An instrument which merely expresses a last wish as a thought or advice but does not contain a disposition of property
and was not executed with ANIMUS TESTANDI cannot be legally considered a will.
- Rizal’s MI ULTIMO ADIOS is a literary piece of work and was so intended. It may be considered a will in a grammatical
sense, but not in a legal or juridical sense. Assuming arguendo that the concerned 13 th stanza in the said writing was a
holographic will, the fact remains that it is still worthless for noncompliance with the mandatory provisions of the Spanish
Civil Code.
- Art 688 requires that it be drawn on stamped paper corresponding to the year of its execution, written in its entirety by
the testator and signed by him and must contain a statement of the year, month and day of execution. Art. 689 requires
that holographic wills be protocoled and shall be presented for this purpose to the judge of first instance of the last
domicile of the testator or to the one of the place where he died within 5 years from the day of the testator’s death.
Without these requisites, the holographic will shall not be valid.
ENRIQUEZ v ABADIA
95 Phil 927
MONTEMAYOR; August 9, 1954
FACTS
- September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his
Last Will and Testament. He died on January 14, 1943 .
Andres Enriquez, one of the legatees filed a petition for its probate which was opposed by some cousins and nephews
who would inherit the estate of the deceased if he left no will.
- One of the attesting witnesses testified without contradiction that in his presence and in the presence of his co-
witnesses, Father Sancho wrote out in longhand said will in Spanish which the testator spoke and understood; that he
(testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is
composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the
last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said
page 3
three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of
each other. The oppositors did not submit any evidence.
- The trial court found said will to be a holographic will. Although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law , the trial court still admitted to probate the Last Will and
Testament of Father Sancho Abadia. The TC did so because at the time of the hearing and when the case was to be
decided the new Civil Code was already in force, which permitted the execution of holographic wills. According to the
trial court, to carry out the intention of the testator is the controlling factor and may override any defect in form.
ISSUE
WON The New Civil Code may be applied to the probate of Father Abadia’s will
HELD
No.
Article 795 of the new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance
of the law in force at the time it is made."
The validity of a will is to be judged not by the law in force at the time of the testator's death or at the time the supposed
will is presented in court for probate or when the petition is decided by the court but at the time the instrument was
executed.
One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of
the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at
the time the will is executed, and in reality, the. legacy or bequest then becomes a completed act.
From the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a
vested right, protected under the due process clause of the constitution against a subsequent change in the statute
adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one
executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then
upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate
sucession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can not validate void wills.
IN RE: PROBATE OF WILL OF JOSE RIOSA
GR L-14074
MALCOLM; November 7, 1918
NATURE
Appeal from decision of CFI Albay which disallowed the will of RIosa
FACTS
- Jose Riosa made a will in January 1908, disposing of his entire estate. The will was executed according to the law in
force at that time, complying with all the requisites then required. He died April 17, 1917. However, between the
execution of the will and his death, the law on formalities on execution of wills was amended by Act No. 2645 (July 1,
1916; it added formalities required such as signatures on each page of the will). The new law, therefore, went into effect
after the making of the will and before the death of the testator, without the testator having left a will that conforms to the
new requirements.
ISSUE
WON the will is valid
HELD
1. YES
The validity of the execution of a will must be tested by the statutes in force at the time of its execution and statutes
subsequently enacted have no retrospective effect.
 SUCCESSION A2010
All statutes are to be construed as having only a prospective operation unless the purpose and intention of the
Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In
every case of doubt, the doubt must be resolved against the restrospective effect.
-The language of Act No. 2645 gives no indication of retrospective effect. Such, likewise, has been the uniform tendency
of the SC on cases having special application to testamentary succession.
- Our statute announces a positive rule for the transference of property which must be complied with as a completed act
at the time of the execution, so far as the act of the testator is concerned, as to all testaments made subsequent to the
enactment of Act No. 2645, but is not effective as to testaments made antecedent to that date.
- the court considered 3 views in addressing the issue:
(1) validity of wills are tested by the laws in force at the time of death of the testator (considered the right of one to make
a will as an inchoate right). This view was rejected by the court. “The act of bequeathing or devising is something more
than inchoate or ambulatory. In reality, it becomes a completed act when the will is executed and attested according to
the law, although it does not take effect on the property until a future time.”
(2) validity of wills must be tested by statutes in force at time of execution. This view is the one adopted by SC
(3) statutes relating to the execution of wills, when they increase the necessary formalities, should be construed so as
not to impair the validity of a will already made and, when they lessen the formalities required, should be construed so
as to aid wills defectively executed according to the law in force at the time of their making. The court did not directly
address this view, but clearly stated that they are adopting the 2nd rule
JIMENEZ v FERNANDEZ
184 SCR 190
PARAS; April 6, 1990
NATURE
Petition for review on certiorari
FACTS
- land in question is the Eastern portion of parcel of residential land with an area of 436 sqm situated in Barrio Dulig,
Labrador, Pangasinan in the name of Sulpicia Jimenez. The entire parcel of land with area of 2,932 sqm, formerly
belonged to Fermin Jimenez. Fermin has 2 sons named Fortunato and Carlos Jimenez. Fortunato who predeceased his
father has only one child, the petitioner Sulpicia. After the death of Fermin, the entire parcel of land was registered under
Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso with
respective OCTs issued on February 28, 1933. Carlos died on July 9, 1936 and his illegitimate daughter, Melecia
Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436
sqm.
- January 20, 1944, Melecia sold said 436 sqm portion to Edilberto Cagampan. Defendant Teodora Grado executed a
contract entitled "Exchange of Real Properties" whereby the Edilberto transferred said 436 sqm portion to the Teodora,
who has been in occupation since.
- August 29, 1969, Sulpicia executed an affidavit adjudicating unto herself the other half of the property appertaining to
Carlos, upon manifestation that she is the only heir of her deceased uncle. Consequently, TCT was issued on October 1,
1969 in Sulipicia’s name alone over the entire 2,932 sqm property.
- April 1, 1970, Sulpicia, joined by her husband, instituted the present action for the recovery of the eastern portion
consisting 436 sqm occupied by defendant Teodora and her son.
- TRIAL COURT: dismissed the complaint and held defendant Teodora the absolute owner of the land in question
- CA: affirmed in toto, MFR deined.
ISSUE
WON Melecia Cayabyab (aka Melecia Jimenez) has right to transfer (Melecia to Edilberto) (and consequent transfer
(Edilberto to Teodora)) over the said property given that she is illegitimate child of Carlos Jimenez
HELD
NO
Reasoning
page 4
- Melecia is not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Teodora et al
failed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez.
Assuming that Melecia was the illegitimate daughter of Carlos Jimenez there can be no question that Melecia had no
right to succeed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to Edilberto
Cagampan that portion of the property subject of this petition.
- It is well-settled in this jurisdiction that the rights to the succession are transmitted from the moment of the death of the
decedent (A777 CC). Moreover, A2263 CC says “Rights to the inheritance of a person who died with or without a will,
before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules
of Court . . ." Since Carlos died on July 9, 1936, the successional rights pertaining to his estate must be determined in
accordance with the Civil Code of 1889.
Cid v. Burnaman : To be an heir under the rules of Civil Code of 1889, a child must be either a child legitimate,
legitimated, or adopted, or else an acknowledged natural child for illegitimate not natural are disqualified to inherit. (Civil
Code of 1889, Art. 807, 935)
- Even assuming that Melecia was born out of the common-law-relationship between her mother (Maria Cayabyab) and
Carlos Jimenez, she could not even be considered an acknowledged natural child because Carlos Jimenez was then
legally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia
Cayabyab was an illegitimate spurious child and not entitled to any successional rights in so far as the estate of Carlos
Jimenez was concerned.
- Melecia could not even legally transfer the parcel of land to Edilberto who accordingly, could not also legally transfer
the same to Teodora.
- Melecia’s possession or of her predecessors-in-interest would be unavailing against Sulpicia who was the holder pro-
indiviso with Carlos Jimenez of the Torrens Certificate of Title covering a tract of land which includes the portion now in
question, from February 28, 1933, when the OCT was issued.
Benin v. Tuason: No possession by any person of any portion of the land covered by said original certificate of titles,
could defeat the title of the registered owner of the land covered by the certificate of title.
MICIANO v BRIMO
50 Phil 867
ROMUALDEZ
NATURE
Appeal from various Manila CFI orders
FACTS
- Joseph Brimo. a Turkish national but a long time resident of the Philippines, died and left behind a testamentary will
with Andre Brimo, one the decedent’s brother as a legatee.
- Andre Brimo opposed the will on the ground that the provisions therein are not in accord with Turkish law and thus a
violation of the Philippine Civil Code, Article 10 which states:
"Nevertheless, legal a testamentary successions, in respect to the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or the country in which it may be situated."
- He was also excluded from the will in view of the provision therein that the testator annuls and cancels the disposition
found in the will favorable to persons who do not respect the provisions of the said will.
- The lower court also dismissed the opposition to the will as the oppositor did not prove that said testamentary
dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what
the Turkish laws ae on the matter, and in the absence of evidence on such laws, they are presumed to be the same as
those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
ISSUES
1. WON the will complied with Turkish law xxx
2. WON the exclusion of Andre Brimo from the will is valid
HELD
1. Yes. The ratiocination of the lower court with regard the presumption that Philippine and Turkish laws are the same is
 SUCCESSION A2010
valid in the absence of evidence that showing what the Turkish laws are on the matter. Hence the will must be complied
with and executed as the same is not contrary to Philippine laws.
2. No. The condition imposed in the will that legatees must respect the testator’s will to distribute his property in
accordance with the laws of the Philippines is void for being contrary to law under Article 792 0f the Civil Code which
provides as follows:
"Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not
prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide."
Said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of
the Civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of
legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.
CAYETANO v LEONIDAS
129 SCRA 524
GUTIERREZ; May 30, 1984
NATURE
Petition for review on certiorari
FACTS
- Adoracion Campos died, leaving her father, Hermogenes and her sisters, Nenita Paguia, Remedios Lopez and Marieta
Medina as the surviving heirs.
- As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication whereby he
adjudicated unto himself the ownership of the entire estate of Adoracion
- Eleven months after, Nenita Paguia filed a petition for the reprobate of a will of Adoracion, which was allegedly
executed in the US and for her appointment as administratrix of the estate of the deceased testatrix.
- An opposition to the reprobate of the will was filed by Hermogenes alleging among other things, that he has every
reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that
even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would
work injustice and injury to him.
- Hermogenes filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter
Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made.
- Respondent judge issued an order admitting the Last Will and Testament of Adoracion and allowed probate in the
Philippines, and Nenita Paguia was appointed Administratrix of the estate of said decedent.
- Hermogenes filed a petition for relief, praying that the order allowing the will be set aside on the ground that the
withdrawal of his opposition to the same was secured through fraudulent means. He filed another motion entitled
"Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction.
- Respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied
the motion to vacate for lack of merit.
ISSUE
WON the provisions of the will are valid.
HELD
- NO. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution
thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law.
The intrinsic validity of the will normally comes only after the court has declared that the will has been duly
authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue.
- Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have
denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her
death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.
page 5
- Capacity to succeed is governed by the law of the nation of the decedent. The law which governs Adoracion Campo's
will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. 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.
- The settlement of the estate of Adoracion Campos was correctly filed with the CFI of Manila where she had an estate
since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of
Pennsylvania, and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is estopped from
questioning the jurisdiction of the probate court in the petition for relief.
ABANGAN v ABANGAN
(Ajang)
SUREZA v SALUD
(Giulia)
MATIAS v SALUD
104 Phil 1046
Reyes; June 23, 1958
NATURE
Appeal from an order of the CFI of Cavite denying probate of the purported will of the late Gabina Raquel
FACTS
- Gabina Raquel executed a will bequeathing most of her properties to her niece Aurea Matias, in recompense for the
services rendered for 30 years, and some legacies are made to her other nephews and nieces surnamed Salud and
Matias.
- The document appears to be composed of three pages. On the lower half of the second page, preceding the
attestation clause, appears the signature “Gabina Raquel” which is apparently of admitted authenticity. Alongside it is a
smudge in violet ink, with blurred ridge lines, claimed by the proponents to be a thumbmark affixed by the testatrix.
Gabina had no choice but just to affix her thumbmark as she had difficulty signing the document due to her herpes
zoster that afflicted her right arm and shoulder. On the third page, at the end of the attestation clause appear the
signature on the left margin of each page; and on the upper part of each page’s left margin appears a violet ink smudge
similar to the one previously described, accompanied by the written words “Gabina Raquel” and underneath said name
“by Lourdes Samonte” (one of the witnesses).
- The probate of the will has been opposed by Salud. She urges that the fingermark of the testatrix cannot be regarded
as her valid signature since it does not show distinct identifying ridge lines; and thence, that the attestation clause
should be held defective because it fails to state that Lourdes Samonte signed for the testator.
- The CFI Judge ruled in favor her, denying probate of the purported will based primarily on the testimony of the
consultant’s expert witness. Thus, this appeal.
ISSUE
WON the specific legal requirements of a notarial will were satisfied
HELD
YES. The legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed
by him; and that where such mark is affixed by the decedent, it is necessary to state in the attestation clause that
another person wrote the testator’s name at his request. While in the some cases the signing by mark was described in
the will or in the attestation clause, it does not appeat that the Court ever held that the absence of such description is a
fatal defect.
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GARCIA v LACUESTA
90 Phil 489
PARAS; November 29, 1951
FACTS
The will of Antero Mercado, dated January 3, 1943 and written Ilocano, appears to have been signed by Atty. Florentino
Javier who wrote the name of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross immediately after his name. The CA, reversing the judgment of
the CFI 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.
ISSUE
WON the attestation clause is defective
HELD
YES.
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. Petitioner
Rosario Garcia 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 court is not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot
and does not have the trustworthiness of a thumbmark.
BALONAN V ABELLANA
109 PHIL 358
LABRADOR, August 31, 1960
NATURE
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta
Abellana.
FACTS
-The last Will and Testament, which is sought to be probated, was written in the Spanish language and consists of two
(2) typewritten pages double spaced. The first page was signed by Juan Bello and under his name appears
typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga' (which I think means, for the testatrix Anacleta Abellana, residence certificate A-1167629, January 20,
1951, City of Zamboanga)
-On the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official
designation as the notary public who notarized the said testament. On the first page on the left margin of the said
instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of said
last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on
the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por
la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos.
ISSUE
WON the signature of Dr. Juan Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad
de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed
page 6
HELD
NO. The deceased Anacleta Abellana may not be admitted to probate.
Anacleta Abellana’s name does not appear written under the will by said Abellana herself, or by Dr. Juan Abello.
Article 805 of the Civil Code, as well as Section 618 of the Code of Civil Procedure (Act No. 190 – probably old) require
that the testator himself sign the will, or if he cannot do so, the testator’s name must be written by some other person in
his presence and by his express direction.
-Ex Parte Pedro Arcenas, et al., Phil, 700: If the testator will not be able to sign the will, the attesting witnesses should
sign the will at the testator’s request, the notary certifying thereto, then the testator’s name should be written by the
person signing in his stead in the place where he could have signed if he knew how or was able to do so, and do this in
the testator’s presence and by the testator’s express direction. It should be signed in the following manner: John Doe by
the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the
witness signing at the request of the testator.
-Barut vs. Cabacungan, 21 Phil, 461: is should clearly appear that the name of the testatrix was signed at her express
direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not.
NERA v RIMANDO
18 PHIL 450
CARSON; February 27, 1911
NATURE
Appeal from a decree of CFI La Union admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando
FACTS
- It is alleged that at the time when the testator and the subscribing witnesses attached their signatures to the
instrument, one of the subscribing parties (Javellana) was in another room.
- Hence, it was impossible for him to see the whole act of signing because a curtain would block his view. This would
then negate the finding of the CFI as to the due execution of the instrument propounded as a will.
- The trial judge did not consider this relevant as he was of the opinion that this allegation, even if proven, would not be
sufficient to invalidate the will on the basis of Jaboneta v Gustilo.
ISSUE
WON one of the subscribing witnesses was present in the small room where it was executed at the time when the
testator and the other witnesses attached their signatures
HELD
YES
Ratio The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have seen each other sign , had they chosen to do so,
considering their mental and physical condition and position with relation to each other at the moment of
inscription of each signature. (Jaboneta v Gustilo)2
Reasoning Evidence shows that “at the moment when Javellana signed the document, he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his
eyes in the proper direction and without any physical obstruction to prevent his doing so.”
* The question whether the testator and the subscribing witnesses to an alleged will signed the instrument in the
presence of each other does NOT depend upon proof of the fact that their eyes were actually cast upon the paper at the
moment of its subscription by each of them, but that at that moment, existing conditions and their position with relation
to each other were such that by merely casting the eyes in the proper direction, they could have seen each other sign.
To extend the doctrine further would lead to the possibility of all manner of fraud, substitution and the like, and would
defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution
of a will.
2
CFI judge misapplied the doctrine laid down in Jaboneta v Gustilo.
 SUCCESSION A2010
TABOADA v ROSAL
118 SCRA 195
GUTIERREZ, JR.; November 5, 1982
NATURE
Petition for review of the orders issued by the CFI of Southern Leyte
FACTS
-Taboada filed a petition for probate, and attached therewith the alleged last will and testament of 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, and the second page 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.
-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.
-TC, thru then Presiding Judge Pamatian, denied the probate of the will of Dorotea Perez for want of a formality in its
execution, and 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.
-The petitioner filed an MFR, and subsequently, a motion for the appointment of special administrator.
-The said motion was still pending resolution when respondent Judge Rosal assumed the position of presiding judge,
and denied said motion, along with the motion for the appointment of special administrator
-The petitioner filed the present petition.
ISSUE
WON the probate of the will should be denied for want of a formality in its execution
HELD
NO.
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 respondent Judge interprets Art 805 of the CC to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but that the three subscribing witnesses must also sign at
the same place— at the end—not on the left hand margin.
-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.
-Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those
things which the statute requires for the execution of a will are done, and that the signature of the testator exists as a
fact. Subscription is the signing of the witnesses' names upon the same paper
-The law is to be liberally construed, the underlying and fundamental objective being 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.
-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.
-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.
page 7
ICASIANO v ICASIANO
11 SCRA 4222
REYES; June 30, 1964
FACTS
. This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the
original as the alleged will of Josefa Villacorte (testatrix), deceased.
. The court set the proving of the alleged will and caused notice thereof to be published for 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.
A daughter and son of the testatrix opposed the probate of the alleged will.
. Celso later 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 submitting the signed duplicate. This
was also opposed.
-Court, after hearing the parties, issued the order admitting the will and its duplicate to probate . Natividad and
Enrique were unhappy so they appealed to SC directly
.The evidence presented for the petitioner is summarized as follows: Testatrix executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Manila, published before and attested by 3 instrumental
witnesses, namely; attorneys Torres, Jr. and Jose Natividad (Jose), and Dr. Diy; that the will was acknowledged by the
testatrix and by the said three instrumental witnesses on the same date before attorney Ong, Notary Public in and for
Manila; and that the will was actually prepared by attorney Samson, who was also present during the execution and
signing of the decedent's last will and testament, together with former Governor 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 Jose 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 attorney Samson.
. The original 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 , Jose, on page (3); but the duplicate copy is signed by the testatrix and her 3
attesting witnesses in each and every page.
.Witness Jose 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.
ISSUE
WON 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.
HELD
YES. It DOES NOT 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, "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".
.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); 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). 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.
. SC is satisfied that : the testatrix signed both original and duplicate copies of the will spontaneously, on the same
occasion, in the presence of the three attesting witnesses, the notary public who acknowledged the will, and Atty.
 SUCCESSION A2010
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. 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 did not convince the SC principally because said expert failed to
show convincingly that there are radical differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix.
.There is also no adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others
is proof of neither.
.That the carbon duplicate was produced & 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
CAGRO v CAGRO
92 Phil 1032
PARAS; April 29, 1953
FACTS
In the will allegedly executed by decedent Vicente Cagro, the signatures of the 3 witnesses do not appear at the bottom
of the attestation clause, although their signatures appear at the left-hand margin of the same page. The CFI admitted
the will to probate. Oppositors appeal this decision.
ISSUE
WON the absence of the signatures of the witnesses at the bottom of the attestation clause, although their signatures
appear at the left-hand margin of the same page, is a fatal defect.
HELD
YES. 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 Court also ruled that the signatures appearing at the left-hand margin cannot be admitted as sufficient because then
it would be easy to just add the attestation clause on a subsequent occasion.
J. Angelo (dissenting). The will has substantially complied with the requirements of the law. The witnesses testified
that when they signed the will, the attestation clause was already there. This was not contradicted. The objection is too
technical because in Abangan v. Abangan, the Court said that when the testamentary 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 such a case, the court said, the requirement of the signatures
on the left hand margin was not necessary because the purpose of the law — which is to avoid the substitution of any of
the sheets of the will, thereby changing the testator's dispositions — has already been accomplished. We should not
also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case
of doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 and 791, New Civil
Code).
J. Tuason (dissenting). The law on wills does not provide that the attesting witness should sign the clause at the
bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is not
any the less the writer's simply because it was signed, not at the conventional place but on the side or on top.
CRUZ v VILLASOR, ET AL.
page 8
00 SCRA 00
ESGUERRA; NOVEMBER 26, 1973
NATURE
Petition for review on certiorari
FACTS
Petitioner-appellant Agapita Cruz, the surviving spouse of Valente Cruz opposed the allowance of the will (Exhibit "E"),
alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument
was execute without the testator having been fully informed of the content thereof, particularly as to what properties he
was disposing and that the supposed last will and testament was not executed in accordance with law. Of the three
instrumental witnesses thereto, one of them, the last named, is at the same time the Notary Public before whom the will
was supposed to have been acknowledged. As the third witness is the notary public himself, petitioner argues that the
result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private
respondent-appellee Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains
that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the
notary public acted as one of them, bolstering up his stand withAmerican Jurisprudence. Notwithstanding her objection,
the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari which was given due
course.
ISSUES
WON the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary
public
HELD
NO. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit;
and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New
International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement
(Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and
the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is
to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive
of the document he has notarized. There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon. But these authorities do not serve the purpose of the law in this jurisdiction or are not
decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only
as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which
reads:
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. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be
requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the
 SUCCESSION A2010
required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law
would not be duly in observed.
GABUCAN v MANTA
G.R. No. L-51546
AQUINO; January 28, 1980
NATURE
Mandamus
FACTS
- This case is about the CFI Camiguin’s dismissal of a petition for the probate of a notarial will ( of the late Rogaciano
Gabucan) on the ground that the requisite documentary stamp was not affixed to the notarial acknowledgment in the will
and, hence, according to Judge Manta, it was not admissible in evidence, citing section 238 of the Tax Code, now
section 250 of the 1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable document . An instrument, document, or paper which is required by law to be
stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any
court until the requisite stamp or stamps shall have been affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document
subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled.
- The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo
documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
- Judge Manta refused to reconsider the dismissal in spite of petitioner's manifestation that he had already attached the
documentary stamp to the original of the will.
HELD
The lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "no
will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed
What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does
not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence
(Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear a documentary stamp, the court should
have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the
holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not
invalidate such document. “
JAVELLANA v LEDESMA
97 PHIL 258
REYES; June 30, 1955
NATURE
Appeal from judgment of CFI Iloilo
FACTS
- CFI admitted to probate the documents as the testament and codicil by Javellana, with Tabiana, Montinola and Yap as
witnesses.
- Contestant Ledesma appealed, saying the exhibits were not executed in conformity with law.
ISSUE/S
page 9
1. WON the testament was validly executed
2. WON the certificate of acknowledgment was validly notarized
HELD
1. YES
- Ledesma argues that upon witness Yap’s insistence, Javellana signed the “testamento” in the presence of Yap alone
and returned it with the statement that no one would question it.
- Court rightly rejected Ledesma’s version. It was found that the testament was executed by testatrix and witnesses in
the presence of each other, at the house of the decedent. It is highly unlikely that either Tabiana or Yap should have
insisted that Javellana, an infirm lady over 80, should leave her house to execute her will when all three witnesses could
have easily repaired thither for the purpose.
2. YES
- Unlike the testament, the codicil was executed after the enactment of new Civil Code. Therefore, it had to be
acknowledged before a notary public.
- The same witnesses asserted that after codicil was signed by Javellana and the witnesses, the same was signed and
sealed by notary public in the hospital. But the notary public said he did not, that he signed and sealed the codicil in his
office.
- This variance doesn’t necessarily imply perversion of truth.
- First, the mind has a tendency, in recalling past events, to substitute the usual and habitual for what differs slightly from
it.
- Second, whether notary signed certification of acknowledgment in the presence of the testatrix and witnesses, doesn’t
affect validity of the codicil. The new Civil Code doesn’t require that the signing of the testator, witnesses and notary
should be in one single act. Art 805 and 806 says that while testator and witnesses should sign in the presence of each
other, all that is thereafter required is that every will must be acknowledged before a notary public by the testator and the
witnesses.
GARCIA v VASQUEZ.
32 SCRA 489
REYES, JBL; April 30, 1970
NATURE
Appeal from an order of the CFI of Manila
FACTS
- Gilceria Avelino del Rosario died unmarried without any descendants, ascendants, brother or sister. Consuelo S.
Gonzales Vda. de Precilla, niece of the deceased, petitioned the CFI for probate of the alleged last will and testament of
the deceased, executed on 29 December 1960, and for her appointment as special administratrix of the latter’s estate
pending the appointment of a regular administrator thereof.
- The petition was opposed by several groups of alleged heirs. Their major contentions were that the instrument
executed in 1960 was not intended by the deceased to be her true will and that the formalities required by law have not
been complied with. They also opposed the appointment of Consuelo as special administratrix on the ground that the
latter possesses interest adverse to the estate.
- CFI granted petitioner’s prayer and appointed her special administratrix.
- Oppositors filed several other motions and petitions in connection with the administration of the estate.
- Called to testify on the due execution of the will, the 3 instrumental witnesses uniformly declared that they were
uniformly requested by the late husband of petitioner, Alfonso Precilla, to witness the execution of the last will of the
deceased; that the testatrix at that time was apparently of clear and sound mind, although she was being aided by
Precilla when she walked; that the will, which was already prepared, was first read “silently” by the testatrix herself
before she signed it; that the 3 witnesses thereafter signed the will in the presence of the testatrix and the notary public
and of one another. They also testified, among other things, that on that occasion no pressure or influence has been
exerted by any person upon the testatrix to execute the will.
- CFI issued an order admitting to probate the 1960 will and appointed the petitioner regular administratrix.
- Oppositor-appellants maintain that on date of execution of the will, the eyesight of the deceased was so poor and
defective that she could not have read the provisions of the will. They called the ophthalmologist of the decedent to the
witness stand to prove this fact.
 SUCCESSION A2010
ISSUE
WON the CFI erred in admitting the will to probate
HELD
YES
- The testimony of the ophthalmologist who treated the deceased fully established the fact that notwithstanding the
operation and removal of the cataract in her left eye and her being fitted with aphakic lens, the deceased’s vision
remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the
condition of her eyesight and there is no evidence that it had improved by the time of the execution of the will, Gilceria
del Rosario was incapable of reading, and could not have read the provisions of the will supposedly signed by her on
December 29, 1960.
- Against the background of the defective eyesight of the alleged testatrix, the appearance of the will acquires striking
significance. The words were crammed into a single sheet of paper. Plainly, the testament was not prepared with any
regard for the defective vision of Dona Gliceria.
- Thus, for all intents and purposes of the rules on probate, the deceased was not unlike a blind testator, and the due
execution of her will would have required observance of the provisions of Art. 808 of the Civil Code.
- The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will
himself is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance
with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and
understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement
that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to
act within the range of the testator’s other senses.
- In connection with the will here in question, there is nothing in the records to show that the above requisites have been
complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due
execution.
ALVARADO v GAVIOLA
GR No. 74695
BELLOSILLO, September 14, 1993
NATURE
Appeal from the Decision of the IAC which affirmed the Order of the RTC of Sta. Cruz, Laguna, admitting to probate the
last will and testament with codicil of the late Brigido Alvarado.
FACTS
- 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son
(petitioner Cesar Alvarado) and expressly revoked a previously executed holographic will at the time awaiting probate.
- At the execution of the "Huling Habilin", the testator did not read the final draft of the will himself. Instead, his lawyer
Bayani Ma. Rino who drafted the document, read the same aloud in the presence of the testator, the 3 instrumental
witnesses and the notary public. The latter 4 followed the reading with their own respective copies.
- 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 his lawyer who read it aloud in his presence and in the presence of the 3 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 by Atty. Rino, as executor,
with the CFI of Siniloan, Laguna. Cesar filed an Opposition on the ground, among others, that the will was not executed
and attested as required by law. A Probate Order was issued from which an appeal was made to the IAC. 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 were executed; that since the reading required by Art. 808 of the CC was admittedly not complied with,
probate of the deceased's last will and codicil should have been denied. The CA found that Brigido Alvarado was not
page 10
blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808
was substantially complied.
ISSUES
1. WON Brigido Alvarado was blind for purposes of Art. 808 at the time his "Huling Habilin" and its codicil were
executed.
2. WON the double reading requirement of said article was complied with.
HELD
1. YES.
Ratio 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. [Garcia vs. Vasquez]
Reasoning It is clear from the foregoing that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are incapable of reading their will. 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 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 conformably with his instructions.
2. YES.
Ratio 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.
Reasoning Atty. Rino read the testator's will and codicil aloud, in the presence of the testator, his 3 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 that the contents of the will and codicil were not sufficiently made known and communicated to the testator.
- Moreover, the notary public and the 3 instrumental witnesses likewise read the will and codicil, albeit silently. 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 were the terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the 3 instrumental witnesses were persons known to the testator, one
being his physician and another being known to him since childhood.
- 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 testament 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, 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 frustration of the testator's will, must be disregarded. [Abangan v.
Abangan]
GIL v MURCIANO
(Sarah)
CANEDA v CA
00 SCRA 00
REGALADO; May 28, 1993
NATURE
Petition for review on certiorari of 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
FACTS
on December 5, 1978, Mateo Caballero, a widower without any children and already old, executed a last will and
 SUCCESSION A2010
testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa.
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.
Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of
one another (Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the
invalidity of the will, should state (1) the number of 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 said
witnesses also signed the will and every page thereof in the presence of the testator and of one another.)
- 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.
ISSUE
WON the substantial compliance rule, in A809 (. 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") applies in this case
HELD
No. 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. 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 (A809)
. . . 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 .
the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. In such a situation, the defect is not only in the form or language of the
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.
GONZALES v CA (SANTIAGO)
90 SCRA 183
GUERRERO; May 25, 1979
FACTS
-Herein respondent filed a petition with CFI Rizal for the probate of a will alleged to have been executed by the
deceased Isabel Gabriel and designating Santiago as the principal beneficiary and executrix.
-There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having
been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner
Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived
with the deceased at the latter’s residence prior and up to the time of her death.
page 11
-The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance
with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be
paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago
Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena all surnamed Santiago. To
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na
pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and
executor, were bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her testatrix
name, after satisfying the expenses, debts and legacies as aforementioned.
-The petition was opposed by herein petitioner, assailing the document purporting to be the will of the deceased on the
following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported will the decedent lacked testamentary capacity due to old
age and sickness; and in the second alternative
4. That the purported will was procured through undue and improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
-CFI found for Gonzales grounds 3 and 4 and disallowed the probate.
-From this judgment of disallowance, Santiago appealed to respondent Court, hence, the only issue decided on appeal
was whether or not the will in question was executed and attested as required by law. CA, upon consideration of the
evidence adduced by both parties, rendered the decision now under review, holding that the will in question was signed
and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and
of each other as required by law, hence allowed probate. Petitioner’s MFR denied.
-Oppositor Gonzales went to SC contending that CA abused its discretion and/or acted without or in excess of its
jurisdiction in reversing the findings of fact and conclusions of the trial court. SC, after deliberating on the petition but
without giving due course resolved to require the respondents to comment thereon. Upon consideration of the
allegations, the issues raised and the arguments adduced in the petition, as well as the Comment of private respondent
thereon, SC denied the petition, the question raised being factual and for insufficient showing that the findings of fact by
respondent Court were unsupported by substantial evidence.
-Gonzales filed MFR -still raising factual issues. SC gave due course. SC discussed non-disturbance of CA’s factual
findings but still explained on the merits.
ISSUE/S
1. WON “credible witnesses” meant that before an alleged last will and testament may be admitted to probate, there
must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or
reputed to be trustworthy and reliable (as maintained by petitioner)
HELD
1. NO
Ratio Instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of
the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of
belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a
good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses
must be competent and their testimonies must be credible before the court allows the probate of the will they have
attested.
Reasoning Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same
Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well-
known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wills with respect to the qualifications of witnesses.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his
good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated
 SUCCESSION A2010 page 12

in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle
from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, of substantial compliance.”
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to
read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil KALAW v RELOVA
Code.
(Yella)
Also without merit is petitioner's contention that the term "credible" as used in the Civil Code should be given the same
meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be
supported by two character witnesses who must prove their good standing in the community, reputation for SPS AJERO v CA (SAND)
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are 236 SCRA 48800
character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the PUNO; September 15, 1994
Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that
said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any NATURE
way disqualified under the provisions of the Naturalization Law. In probate proceedings, the instrumental witnesses are Appeal by certiorari
not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to
said execution. FACTS
- In the will, decedent Annie Sand named as devisees, the ff: petitioners Roberto and Thelma Ajero, private respondent
ROXAS v DE JESUS Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
134 SCRA 245 and their children.
- Petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time
GUTIERREZ; January 28, 1985
of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in
every respect capacitated to dispose of her estate by will.
FACTS
- Clemente Sand opposed the petition on the grounds that: neither the testament's body nor the signature therein was in
-After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Simeon R. Roxas, the brother of the
decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will
deceased Bibiana Roxas de Jesus was appointed administrator.
was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr.
-He delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de
Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He
Jesus.
claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.
-Roxas testified that he found a will of Bibiana in a notebook. The will was dated "FEB./61 " and states: "This is my win
- RTC admitted the decedent's holographic will to probate. It ruled: Considering then that the probate proceedings
which I want to be respected although it is not written by a lawyer. ...
herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the
-The testimony was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise
testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the
testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
recognized the handwriting of their mother and positively identified her signature
- On appeal CA reversed RTC decision and dismissed petition for probate of decedent's will. It ruled: The holographic
-trial Court granted the probate of the will. But Luz Roxas de Jesus challenged the validity of the will claiming that it was
will fails to meet the requirements for its validity. The decedent did not comply with A813 and A814 of NCC. 3 Hence, this
not made under the specifications of the law (Art.810 CC) such that the date “FEB, 61” does not conform to the law. The
appeal.
month and day should also be included.
-judgment reversed
ISSUE
WON CA erred in dismissing the petition for probate of decedent's will
ISSUE
WON the date "FEB./61 " appearing on the holographic Will is a valid compliance with the Article 810 of the Civil Code
HELD
YES
HELD
- In a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
YES
submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the
-The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and
formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was
Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the
executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent.
year, month, and day, and that if any of these is wanting, the holographic Will is invalid.
- Therefore, it was erroneous for the CA to hold that: Since the holographic will of Anne Sand was not executed in
-Petitoner on the other hand contends that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil
accordance with the formalities prescribed by law, and that A813 and A814 NCC were not complied with, the probate of
Code require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil
said will is disallowed.
Code omitted the phrase Año mes y dia” and simply requires that the holographic Will should be dated.
- In the case of holographic wills, what assures authenticity is the requirement that they be totally autographic or
-Court held that “We should not overlook the liberal trend ofthe Civil Code in the manner of execution of Wills, the
handwritten by the testator himself, as provided under A810 of NCC. Failure to strictly observe other formalities will not
purpose ofwhich, in case of doubt is to prevent intestacy”
result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
-The fundamental objectives of the law on wills consists in the liberalization of the manner of their execution with the end
- If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated.
in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions
Such failure, however, does not render the whole testament void.
to prevent fraud and the exercise of undue and improper pressure and influence on thetestator.
-“As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However,
3
when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date,
of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a such date validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.
 SUCCESSION A2010
- In fact, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of A814.
(Kalaw vs. Relova)
- Unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on
testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in
disallowance of such changes.
- As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to
be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will.
YAP v GAN
104 Phil 509
BENGZON; August 30, 1958
FACTS
Felicidad Esguerra Alto Yap died leaving properties in Pulilan, Bulacan, and in the City of Manila. Fausto E. Gan initiated
these proceedings in the CFI of Manila with a petition for the probate of a holographic will allegedly executed by the
deceased. The said will states that she is giving Vicente Esguerra, Sr. 5 parts, Fausto E. Gan 2 parts, Rosario E. Gan 2
parts, Filomena Alto 1 part, Beatriz Alto 1 part and that all of her properties in Manila and other places shall be given to
her husband on the condition that he set up a Health Center in Bulacan which is not less than Php. 60, 000.00. Also, her
name should be engraved on the Health Center.
Ildefenso Yap, the deceased husband opposed the petition asserting that the deceased had not left any will, nor
executed any testament during her lifetime.
CFI denied the petition. The will itself was not presented instead testimonies tried to establish its contents and due
execution.
ISSUE
WON a holographic will was made and is it valid
HELD
No, the testimony of the people who allegedly saw the will was not enough.
The topic more importantly focuses on:
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic
will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form
and may be made in or out of the Philippines, and need not be witnessed."
Holographic wills, no guaranty of truth and veracity are demanded as they need no witnesses; provided however, that
they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be
demonstrated to be - or not to be - in the hands of the testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three
such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in
their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use
its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by
the testator.
Question: May a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who
declare that it was in the handwriting of the testator?
No. The courts will not distribute the property of the deceased in accordance with his holographic will, unless they are
shown his handwriting and signature.
page 13
The execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.
The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing
witnesses are available to authenticate.
In the case of holographic wills, if oral testimony were admissible only one man could engineer the whole fraud this way:
after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let
three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost - the forger
may have purposely destroyed it in an "accident" - the oppositors have no way to expose the trick and the error,
because the document itself is not at hand. And considering that the holographic will may consist of two or three pages,
and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones,
may go undetected.
RODELAS v ARANZA
119 SCRA 16
RELOVA; December 7, 1982
FACTS
- Rodelas filed a petition with the CFI for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. However, he only presented a copy of the will.
- Appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla opposed, saying
that the holographic itself, not a copy thereof, will must be presented. They likewise moved for the consolidation of the
said case with Sp. Proc. 8275. The consolidation was granted.
- The CA, citing the case of Gam v Yap, said that when a copy of the holographic will is lost, a copy cannot stand in lieu
thereof. Also, since the will was executed in 1962 and Bonilla died in 1976, given that the original could not be located, it
could be presumed that the decedent has discarded the will before his death.
ISSUE/S
1. WON a holographic will which was lost or cannot be found can be proved by means of a photostatic (xerox) copy
HELD
1. Yes.
Reasoning If the holographic will has been lost or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or
xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the
testator.
- Despite the SC’s pronouncements in Gam v Yap, footnote 8 of said decision also adds that, "Perhaps it may be proved
by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby
the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court,"
AZAOLA v SINGSON
109 PHIL 102
REYES, J.B.L.; August 5, 1960
 SUCCESSION A2010
NATURE
An appeal from a judgment of the Court of First Instance of Rizal.
FACTS
- This case involves the determination of the quantity of evidence required for the probate of a holographic will.
- September 9, 1957: Fortunata S. Vda. de Yance died; Francisco Azaola, petitioner herein for probate, submitted the
said holographic will whereby Maria Alilagros Azaola was made the sole heir as against the nephew of the deceased
Cesario Singson (respondent).
- Francisco Azaola testified that he saw the holographic will a month, more or less, before the death of the testatrix, as
the same was handed to him and his wife; he also testified that he recognized all the signatures appearing in
the holographic will as the handwriting of the testatrix .
- Additional evidence: residence certificates to show the signatures of the testatrix for comparison purposes. Azaola
testified that the penmanship appearing in the said documentary evidence is in the handwriting of the testatrix as well as
the signatures appearing therein are the signatures of the testatrix (as contained in the stenographic notes).
- The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three
witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being
contested. The lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in
the handwriting of the testatrix.”
ISSUE
WON three witnesses are necessary to establish the handwriting/ signature contained in a will.
HELD
NO
Ratio Where the will is holographic, no witnesses need to be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided. The rule of the first paragraph of
Article 811 of the Civil Code is merely directory and is not mandatory.
Reasoning
Art. 811, Civil Code
“In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.”
- Since the authenticity of the will was not contested, the proponent was not required to produce more than one witness.
Even if the genuineness of the holographic will were contested, the Court is of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied.
- Since no witness may have been present at the execution of a holographic will (none being required by law) the
existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is
not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting
and signature of the testator" and who can declare truthfully "that the will and the signature are in the handwriting of the
testator."
- Compliance with the rule of paragraph 1 of Article 811 may even be impossible. This is evidently the reason for the
second paragraph of Art. 811. The law foresees the possibility that no qualified witness may be found (or may refuse to
testify), and provides for resort to expert evidence to supply the deficiency.
- The requirement can be considered mandatory only in the case of ordinary testaments, precisely because
the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their
validity.
- The resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the
law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. And because the law leaves it to the trial court to decide if experts are still
needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.
page 14
CODOY v CALUGAY
312 SCRA 333
PARDO; August 12, 1999
NATURE
Petition for review on certiorari of the CA decision and resolution denying MR
FACTS
-On April 6, 1990, respondents Evangeline Calugay, Josepine Salcedo and Eufemia Patigas, devisees and legatees of
the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with RTC Branch 18, Misamis Oriental, a
petition for probate of the said holographic will. Petitioners Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition thereto, alleging that the holographic will was a forgery and that the same was even illegible which gives an
impression that a “third hand” of an interested party other than the true hand of Matilde Seño Vda. de Ramonal executed
the holographic will. They argued that the repeated dates (August 30, 1978) incorporated or appearing on the will after
every disposition is out of the ordinary; that if the deceased was the one who executed the will, and was not forced, the
dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every
disposition; and that assuming the holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.
-At the hearing, respondents presented six ordinary witnesses and various documentary evidence. Petitioners, instead
of presenting their evidence, filed a demurrer to evidence, which the trial court granted. Respondents appealed, and in
support thereof, they once again reiterated the testimony of their ordinary witnesses (clerk of court, election registrar,
DENR employee, deceased’s niece, lawyer, and adoptee) who testified as to the similarity, authenticity, genuineness of
the signature of the deceased in the holographic will.
-Oct 9, 1995: the Court of Appeals rendered a decision, ruling that the appeal was meritorious, sustaining the
authenticity of the holographic will and the handwriting and signature therein, and allowing the will to probate. CA,
paraphrasing Azaola vs. Singson, 109 Phil. 102, held that “even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need
be present in the execution of the holographic will. And the rule requiring the production of three witnesses is
merely permissive . What the law deems essential is that the court is convinced of the authenticity of the will. Its duty
is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of
the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party’s failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.”
-Hence, this petition.
ISSUE
WON CA erred in holding that respondents had been able to present credible evidence to prove that the date, text, and
signature on the holographic will were written entirely in the hand of the testatrix.
HELD
YES.
-Article 811 provides, as a requirement for the probate of a contested holographic will, that at least three witnesses
explicitly declare that the signature in the will is the genuine signature of the testator. Based on the language used, this
provision is mandatory. The word “shall” connotes a mandatory order, an imperative obligation, inconsistent with the
idea of discretion. Art. 811 is meant to give effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. The
paramount consideration is to determine the true intent of the deceased.
-Not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of the
testator. Even the three witnesses from whose witnesses CA relied seem unreliable.
(1) Ms. Matilde Ramonal Binanay, merely testified that she was familiar with her aunt’s signature. She did not declare
that she saw the deceased sign a document or write a note. What she saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. Further, during the cross-examination, the counsel for
 SUCCESSION A2010
petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that she took it from the aparador of her deceased mother, so she could seek
advice from a lawyer. She kept the fact about the will from petitioners, the legally adopted children of the deceased.
Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of
Matilde Seño Vda. de Ramonal.
(2) Evangeline Calugay, the deceased’s adoptee, gives as her only reason as to why she was familiar with the
handwriting of the deceased, the fact that she lived with her since birth. She never declared that she saw the deceased
write a note or sign a document.
(3) The former lawyer of the deceased, Fiscal Waga, was not definite whether the signatures in the holographic will were
that of Matilde vda de Ramonal. He was merely supposing that it seems to be her signature because it is similar to the
signature of the project of partition he prepared.
-Ajero vs. Court of Appeals: “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.” We cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is
why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting
of the deceased.
-In this case, the will was found not in the personal belongings of the deceased but with one of the respondents, who
kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other
documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-
examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the
former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.
-A visual examination of the holographic will convince us that the strokes are different when compared with other
documents written by the testator. The signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30,
1978, and the signatures in several documents such as the application letter for pasture permit dated December 30,
1980, and a letter dated June 16, 1978, the strokes are different. In the letters, there are continuous flows of the
strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be
certain that the holographic will was in the handwriting by the deceased.
UNSON v ABELLA,
43 PHIL 494
VILLAMOR; June 12, 1922
FACTS
- Doña Josefa Zalamea y Abella executed her last will and testament with an attached inventory of her properties in the
presence of three witnesses, who signed with her all the pages of said documents.
- When the testatrix died, the executor appointed in the will, Pedro Unson, filed an application for the probate of the will
and the issuance of the proper letters of administration in his favor.
- To said application an opposition was presented by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito,
alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provinces of the law,
inasmuch as it was not paged correlatively in letters, nor was there any attestation clause in it, nor was it signed by the
testatrix and the witnesses in the presence of each other.
- The judge a quo overruled the opposition of the contestants, and ordered the probate of the will and the inventory
holding that both documents contained the true and last will of the deceased Josefa Zalamea.
ISSUES
1. WON the will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law.
2. WON the court below erred in admitting the will to probate notwithstanding the omission of the proponent to produce
one of the attesting witnesses.
page 15
3. WON the court below erred in admitting the inventory to probate despite the fact that this exhibit has no attestation
clause in it, and its paging is made in Arabic numerals and not in letters.
HELD
1. YES. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other
witness to the will, Pedro de Jesus, they did sign each and every page of the will and of the inventory in the presence of
each other and of the testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their
presence.
- Appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the witnesses on the day of
the execution of the will basing their contention on the testimony of Aurelio Palileo, who says that on one occasion
Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the testatrix.
Palileo's testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well.
Palileo's testimony cannot prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea.
2. NO. At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the
testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were
reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the
announcement of the trial of the petition for the probate of the will, said witness has been in frequent communication
with the contestants and their attorney, and has refused to hold any conference with the attorneys for the proponent.
- The trial court found that the evidence introduced by the proponent, consisting of the testimony of the two attesting
witnesses and the other witness who was present at the execution, and had charge of the preparation of the will and the
inventory was sufficient.
- Cabang vs. Delfinado: the general rule is that, where opposition is made to the probate of a will, the attesting
witnesses must be produced. But there are exceptions to this rule, for instance, 1when a witness is dead, or 2cannot be
served with process of the court, or 3his reputation for truth has been questioned or 4he appears hostile to the cause of
the proponent. In such cases, the will may be admitted to probate without the testimony of said witness, if, upon the
other proofs adduced in the case, the court is satisfied that the will has been duly executed.
- But supposing that said witness, when cited, had testified adversely to the application, this would not by itself have
change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be
admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court
is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law.
3. NO. In the third paragraph of the will, reference is made to the inventory, and at the bottom of said will, the testatrix
Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the
attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the
presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna,
Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as the inventory of the properties of Doña Josefa Zalamea y Abella, was read to Doña Josefa
Zalamea y Abella, and the latter affixed her name to the last, and each and every page of this will and inventory composed of ten folios in our presence; and she declared this to be her last will and testament
and at her request we have affixed hereunto our respective signatures in her presence and in the presence of each other as witnesses to the will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna,
P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
- In view of the fact that the inventory is referred to in the will as an integral part of it, the Court found that the foregoing
attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will,
and makes unnecessary any other attestation clause at the end of the inventory .
- As to the paging of the will in Arabic numerals, instead of in letters, the Court adhered to the doctrine announced in the
case of Aldaba vs. Roque where the will was assailed on the ground that its folios were paged with the letters A, B, C,
etc., instead of with the letters "one," two," "three," etc. It was held that this way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and
serves to prevent the abstraction of any of them.
- In the course of the decision, the Court said: "It might be said that the object of the law in requiring that the paging be
made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are
signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the
 SUCCESSION A2010 page 16

same. In other words the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make
for the easiness to forge the signatures.
- Abangan vs. Abangan: 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 whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless, and frustrative of the testator's last will, must be disregarded.
- In that case the testament was written on one page, and the attestation clause on another. Neither one of these pages
was numbered in any way, and it was held: "In a will consisting of 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."
- This means that, according to the particular case, the omission of paging does not necessarily render the testament
invalid.
- The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if the
paging should be placed in the lower part, would the testament be void for this sole reason? The Court believes not. The
law also provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament;
but if they should sign on the right margin, would this fact also annul the testament? Evidently not.
- Avera vs. Garcia and Rodriguez : "It is true that the statute says that the testator and the instrumental witnesses shall
sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect
that all statutory requirements as to the execution of wills must be fully complied with."
"Still some details at time creep into legislative enactments which are so trivial that it would be absurd to suppose that
the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of
the testator and witnesses shall be written on the left margin of each page — rather than on the margin — seems to be
of this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or on the right margin, provided they are on one or the other."
- The Court said that it does not desire to intimate that the numbering in letters is a requisite of no importance. But since
its principal object is to give the correlation of the pages, it held that his object may be attained by writing one, two,
three, etc., as well as by writing A, B, C, etc. It saw no reason why the same rule should not be applied where the paging
is in Arabic numerals, instead of in letters, as in the inventory in question.