G.R. No.

103554 May 28, 1993 Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR had their said petition intestate proceeding consolidated with Special Proceeding No.
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, probate of the Testator's will and the appointment of a special administrator for his
and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, estate.5
NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs. Benoni Cabrera died on February 8, 1982 hence the probate court, now known as
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
Administrator of the Estate of Mateo Caballero, respondents. special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an
order for the return of the records of Special Proceeding No. 3965-R to the archives
Palma, Palma & Associates for petitioners. since the testate proceeding for the probate of the will had to be heard and resolved
Emilio Lumontad, Jr. for private respondents. first. On March 26, 1984 the case was reraffled and eventually assigned to Branch
XII of the Regional Trial Court of Cebu where it remained until the conclusion of the
REGALADO, J.: probate proceedings.6

Presented for resolution by this Court in the present petition for review on certiorari In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
is the issue of whether or not the attestation clause contained in the last will and appeared as oppositors and objected to the allowance of the testator's will on the
testament of the late Mateo Caballero complies with the requirements of Article 805, ground that on the alleged date of its execution, the testator was already in the poor
in relation to Article 809, of the Civil Code. state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
The records show that on December 5, 1978, Mateo Caballero, a widower without therein.7
any children and already in the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three attesting witnesses, namely, On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was public Atty. Filoteo Manigos, testified that the testator executed the will in question
duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. in their presence while he was of sound and disposing mind and that, contrary to the
Filoteo Manigos, in the preparation of that last will.1 It was declared therein, among assertions of the oppositors, Mateo Caballero was in good health and was not unduly
other things, that the testator was leaving by way of legacies and devises his real and influenced in any way in the execution of his will. Labuca also testified that he and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, the other witnesses attested and signed the will in the presence of the testator and of
Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not each other. The other two attesting witnesses were not presented in the probate
appear to be related to the testator.2 hearing as the had died by then.8

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition On April 5, 1988, the probate court rendered a decision declaring the will in question
docketed as Special Proceeding No. 3899-R before Branch II of the then Court of as the last will and testament of the late Mateo Caballero, on the ratiocination that:
First Instance of Cebu seeking the probate of his last will and testament. The probate
court set the petition for hearing on August 20, 1979 but the same and subsequent . . . The self-serving testimony of the two witnesses of the oppositors cannot
scheduled hearings were postponed for one reason to another. On May 29, 1980, the overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca
testator passed away before his petition could finally be heard by the probate court.3 who clearly told the Court that indeed Mateo Caballero executed the Last Will and
On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it
his appointment as special administrator of the testator's estate, the estimated value was Mateo Caballero who initiated the probate of his Will during his lifetime when
of which was P24,000.00, and he was so appointed by the probate court in its order he caused the filing of the original petition now marked Exhibit "D" clearly
of March 6, 1981.4 underscores the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo Caballero in
Exhibit "C" examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this signature of Mateo respondent court, the validity of the attestation clause in the last will of Mateo
Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and Caballero.
instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors. We find the present petition to be meritorious, as we shall shortly hereafter, after
some prefatory observations which we feel should be made in aid of the rationale for
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament our resolution of the controversy.
of Mateo Caballero and that it was executed in accordance with all the requisites of
the law.9 1. A will has been defined as a species of conveyance whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition
Undaunted by the said judgment of the probate court, petitioners elevated the case in of his estate after his death. 13 Under the Civil Code, there are two kinds of wills
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will which a testator may execute.14 the first kind is the ordinary or attested will, the
in question is null and void for the reason that its attestation clause is fatally execution of which is governed by Articles 804 to 809 of the Code. Article 805
defective since it fails to specifically state that the instrumental witnesses to the will requires that:
witnessed the testator signing the will in their presence and that they also signed the
will and all the pages thereof in the presence of the testator and of one another. Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
On October 15, 1991, respondent court promulgated its decision 10 affirming that of in his presence, and by his express direction, and attested and subscribed by three or
the trial court, and ruling that the attestation clause in the last will of Mateo more credible witnesses in the presence of the testator and of one another.
Caballero substantially complies with Article 805 of the Civil Code, thus:
The testator or the person requested by him to write his name and the instrumental
The question therefore is whether the attestation clause in question may be witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
considered as having substantialy complied with the requirements of Art. 805 of the except the last, on the left margin, and all the pages shall be numbered correlatively
Civil Code. What appears in the attestation clause which the oppositors claim to be in letters placed on the upper part of each page.
defective is "we do certify that the testament was read by him and the attestator,
Mateo Caballero, has published unto us the foregoing will consisting of THREE The attestation should state the number of pages used upon which the will is written,
PAGES, including the acknowledgment, each page numbered correlatively in letters and the fact that the testator signed the will and every page thereof, or caused some
of the upper part of each page, as his Last Will and Testament, and he has signed the other person to write his name, under his express direction, in the presence of the
same and every page thereof, on the spaces provided for his signature and on the left instrumental witnesses, and that the latter witnessed and signed the will and all the
hand margin in the presence of the said testator and in the presence of each and all of pages thereof in the presence of the testator and of one another.
us (emphasis supplied).
If the attestation clause is in a language not known to the witness, it shall be
To our thinking, this is sufficient compliance and no evidence need be presented to interpreted to them.
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of In addition, the ordinary will must be acknowledged before a notary public by a
the law would have it that the testator signed the will "in the presence of the testator and the attesting witness. 15 hence it is likewise known as notarial will.
instrumental witnesses, and that the latter witnessed and signed the will and all the Where the attestator is deaf or deaf-mute, Article 807 requires that he must
pages thereof in the presence of the testator and of one another." If not completely or personally read the will, if able to do so. Otherwise, he should designate two persons
ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as who would read the will and communicate its contents to him in a practicable
formulated is in substantial compliance with the requirement of the law." 11 manner. On the other hand, if the testator is blind, the will should be read to him
twice; once, by anyone of the witnesses thereto, and then again, by the notary public
Petitioners moved for the reconsideration of the said ruling of respondent court, but before whom it is acknowledged. 16
the same was denied in the latter's resolution of January 14, 1992, 12 hence this
appeal now before us. Petitioners assert that respondent court has ruled upon said The other kind of will is the holographic will, which Article 810 defines as one that
issue in a manner not in accord with the law and settled jurisprudence on the matter is entirely written, dated, and signed by the testator himself. This kind of will, unlike
and are now questioning once more, on the same ground as that raised before the ordinary type, requires no attestation by witnesses. A common requirement in
both kinds of will is that they should be in writing and must have been executed in a The underlying and fundamental objectives permeating the provisions on the law on
language or dialect known to the testator. 17 wills in this Project consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in expressing his last
However, in the case of an ordinary or attested will, its attestation clause need not be wishes, but with sufficient safeguards and restrictions to prevent the commission of
written in a language or dialect known to the testator since it does not form part of fraud and the exercise of undue and improper pressure and influence upon the
the testamentary disposition. Furthermore, the language used in the attestation clause testator.
likewise need not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause shall be This objective is in accord with the modern tendency with respect to the formalities
interpreted to said witnesses. in the execution of wills. . . .29

An attestation clause refers to that part of an ordinary will whereby the attesting 2. An examination of the last will and testament of Mateo Caballero shows that it is
witnesses certify that the instrument has been executed before them and to the comprised of three sheets all of which have been numbered correlatively, with the
manner of the execution the same. 19 It is a separate memorandum or record of the left margin of each page thereof bearing the respective signatures of the testator and
facts surrounding the conduct of execution and once signed by the witnesses, it gives the three attesting witnesses. The part of the will containing the testamentary
affirmation to the fact that compliance with the essential formalities required by law dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
has been observed. 20 It is made for the purpose of preserving in a permanent form a thereof by the testator. The attestation clause in question, on the other hand, is recited
record of the facts that attended the execution of a particular will, so that in case of in the English language and is likewise signed at the end thereof by the three
failure of the memory of the attesting witnesses, or other casualty, such facts may attesting witnesses hereto.30 Since it is the proverbial bone of contention, we
still be proved. 21 reproduce it again for facility of reference:

Under the third paragraph of Article 805, such a clause, the complete lack of which We, the undersigned attesting Witnesses, whose Residences and postal addresses
would result in the invalidity of the will, 22 should state (1) the number of the pages appear on the Opposite of our respective names, we do hereby certify that the
used upon which the will is written; (2) that the testator signed, or expressly caused Testament was read by him and the testator, MATEO CABALLERO; has published
another to sign, the will and every page thereof in the presence of the attesting unto us the foregoing Will consisting of THREE PAGES, including the
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of Acknowledgment, each page numbered correlatively in the letters on the upper part
the will and all its pages, and that said witnesses also signed the will and every page of each page, as his Last Will and Testament and he has the same and every page
thereof in the presence of the testator and of one another. 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.
The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or It will be noted that Article 805 requires that the witness should both attest and
some of its pages and to prevent any increase or decrease in the pages;23 whereas the subscribe to the will in the presence of the testator and of one another. "Attestation"
subscription of the signature of the testator and the attesting witnesses is made for the and "subscription" differ in meaning. Attestation is the act of senses, while
purpose of authentication and identification, and thus indicates that the will is the subscription is the act of the hand. The former is mental, the latter mechanical, and to
very same instrument executed by the testator and attested to by the witnesses.24 attest a will is to know that it was published as such, and to certify the facts required
to constitute an actual and legal publication; but to subscribe a paper published as a
Further, by attesting and subscribing to the will, the witnesses thereby declare the will is only to write on the same paper the names of the witnesses, for the sole
due execution of the will as embodied in the attestation clause.25 The attestation purpose of identification.31
clause, therefore, provide strong legal guaranties for the due execution of a will and
to insure the authenticity thereof.26 As it appertains only to the witnesses and not to In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the
the testator, it need be signed only by them.27 Where it is left unsigned, it would testator's execution of the will in order to see and take note mentally that those things
result in the invalidation of the will as it would be possible and easy to add the clause are done which the statute requires for the execution of a will and that the signature
on a subsequent occasion in the absence of the testator and its witnesses.28 of the testator exists as a fact. On the other hand, subscription is the signing of the
witnesses' names upon the same paper for the purpose of identification of such paper
In its report, the Code Commission commented on the reasons of the law for as the will which was executed by the testator. As it involves a mental act, there
requiring the formalities to be followed in the execution of wills, in the following would be no means, therefore, of ascertaining by a physical examination of the will
manner:
whether the witnesses had indeed signed in the presence of the testator and of each cannot be conclusively inferred therefrom that the said witness affixed their
other unless this is substantially expressed in the attestation. respective signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only establishes the
It is contended by petitioners that the aforequoted attestation clause, in contravention fact that it was indeed signed, but it does not prove that the attesting witnesses did
of the express requirements of the third paragraph of Article 805 of the Civil Code subscribe to the will in the presence of the testator and of each other. The execution
for attestation clauses, fails to specifically state the fact that the attesting witnesses of a will is supposed to be one act so that where the testator and the witnesses sign on
the testator sign the will and all its pages in their presence and that they, the various days or occasions and in various combinations, the will cannot be stamped
witnesses, likewise signed the will and every page thereof in the presence of the with the imprimatur of effectivity.33
testator and of each other. We agree.
We believe that the further comment of former Justice J.B.L. Reyes34 regarding
What is fairly apparent upon a careful reading of the attestation clause herein Article 809, wherein he urged caution in the application of the substantial
assailed is the fact that while it recites that the testator indeed signed the will and all compliance rule therein, is correct and should be applied in the case under
its pages in the presence of the three attesting witnesses and states as well the consideration, as well as to future cases with similar questions:
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will in . . . The rule must be limited to disregarding those defects that can be supplied by an
the presence of the testator and of each other. examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
The phrase "and he has signed the same and every page thereof, on the spaces witnesses are three or the will was notarized. All theses are facts that the will itself
provided for his signature and on the left hand margin," obviously refers to the can reveal, and defects or even omissions concerning them in the attestation clause
testator and not the instrumental witnesses as it is immediately preceded by the can be safely disregarded. But the total number of pages, and whether all persons
words "as his Last Will and Testament." On the other hand, although the words "in required to sign did so in the presence of each other must substantially appear in the
the presence of the testator and in the presence of each and all of us" may, at first attestation clause, being the only check against perjury in the probate proceedings.
blush, appear to likewise signify and refer to the witnesses, it must, however, be (Emphasis ours.)
interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words "he has signed the same and every 3. We stress once more that under Article 809, the defects and imperfections must
page thereof, on the spaces provided for his signature and on the left hand margin." only be with respect to the form of the attestation or the language employed therein.
What is then clearly lacking, in the final logical analysis , is the statement that the Such defects or imperfections would not render a will invalid should it be proved that
witnesses signed the will and every page thereof in the presence of the testator and of the will was really executed and attested in compliance with Article 805. In this
one another. regard, however, the manner of proving the due execution and attestation has been
held to be limited to merely an examination of the will itself without resorting to
It is our considered view that the absence of that statement required by law is a fatal evidence aliunde, whether oral or written.
defect or imperfection which must necessarily result in the disallowance of the will
that is here sought to be admitted to probate. Petitioners are correct in pointing out The foregoing considerations do not apply where the attestation clause totally omits
that the aforestated defect in the attestation clause obviously cannot be characterized the fact that the attesting witnesses signed each and every page of the will in the
as merely involving the form of the will or the language used therein which would presence of the testator and of each other.35 In such a situation, the defect is not only
warrant the application of the substantial compliance rule, as contemplated in the in the form or language of the attestation clause but the total absence of a specific
pertinent provision thereon in the Civil Code, to wit: element required by Article 805 to be specifically stated in the attestation clause of a
will. That is precisely the defect complained of in the present case since there is no
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper plausible way by which we can read into the questioned attestation clause statement,
pressure and influence, defects and imperfections in the form of attestation or in the or an implication thereof, that the attesting witness did actually bear witness to the
language used therein shall not render the will invalid if it is not proved that the will signing by the testator of the will and all of its pages and that said instrumental
was in fact executed and attested in substantial compliance with all the requirements witnesses also signed the will and every page thereof in the presence of the testator
of article 805" (Emphasis supplied.) and of one another.

While it may be true that the attestation clause is indeed subscribed at the end thereof Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or
and at the left margin of each page by the three attesting witnesses, it certainly relied on by respondents since it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a consideration of matters apparent Gumban, the attestation clause had failed to state that the witnesses signed the will
therefrom which would provide the data not expressed in the attestation clause or and each and every page thereof on the left margin in the presence of the testator.
from which it may necessarily be gleaned or clearly inferred that the acts not stated The will in question was disallowed, with these reasons therefor:
in the omitted textual requirements were actually complied within the execution of
the will. In other words, defects must be remedied by intrinsic evidence supplied by In support of their argument on the assignment of error above-mentioned, appellants
the will itself. rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
In the case at bar, contrarily, proof of the acts required to have been performed by the Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
attesting witnesses can be supplied by only extrinsic evidence thereof, since an Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48
overall appreciation of the contents of the will yields no basis whatsoever from with Phil., 506). Appellee counters with the citation of a series of cases beginning with
such facts may be plausibly deduced. What private respondent insists on are the Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque
testimonies of his witnesses alleging that they saw the compliance with such ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
requirements by the instrumental witnesses, oblivious of the fact that he is thereby culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last
resorting to extrinsic evidence to prove the same and would accordingly be doing by analysis, our task is to contrast and, if possible, conciliate the last two decisions cited
the indirection what in law he cannot do directly. by opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence
of views as to which manner of interpretation should be followed in resolving issues In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
centering on compliance with the legal formalities required in the execution of wills. which does not recite that the witnesses signed the will and each and every page
The formal requirements were at that time embodied primarily in Section 618 of Act thereof on the left margin in the presence of the testator is defective, and such a
No. 190, the Code of Civil Procedure. Said section was later amended by Act No. defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case
2645, but the provisions respecting said formalities found in Act. No. 190 and the of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
amendment thereto were practically reproduced and adopted in the Civil Code. decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses reciprocally
One view advance the liberal or substantial compliance rule. This was first laid down saw the signing of the will, for such an act cannot be proved by the mere exhibition
in the case of Abangan vs. Abangan,36 where it was held that the object of the of the will, if it is not stated therein. It was also held that the fact that the testator and
solemnities surrounding the execution of wills is to close the door against bad faith the witnesses signed each and every page of the will can be proved also by the mere
and fraud, to avoid substitution of wills and testaments and to guarantee their truth examination of the signatures appearing on the document itself, and the omission to
and authenticity. Therefore, the laws on this subject should be interpreted in such a state such evident facts does not invalidate the will.
way as to attain these primordial ends. Nonetheless, it was also emphasized that one
must not lose sight of the fact that it is not the object of the law to restrain and curtail It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
the exercise of the right to make a will, hence when an interpretation already given inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
assures such ends, any other interpretation whatsoever that adds nothing but demands and Quintana decisions. They are fundamentally at variance. If we rely on one, we
more requisites entirely unnecessary, useless and frustrative of the testator's last will, affirm. If we rely on the other, we reverse.
must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba vs.
Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, In resolving this puzzling question of authority, three outstanding points may be
et al.,41 and Nayve vs. Mojal, et al.42 all adhered to this position. mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
The other view which advocated the rule that statutes which prescribe the formalities Quintana decision was concurred in by seven members of the court, a clear majority,
that should be observed in the execution of wills are mandatory in nature and are to with one formal dissent. In the second place, the Mojal decision was promulgated in
be strictly construed was followed in the subsequent cases of In the Matter of the December, 1924, while the Quintana decision was promulgated in December, 1925;
Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate the Quintana decision was thus subsequent in point of time. And in the third place,
of Neumark, 46 and Sano vs. Quintana.47 the Quintana decision is believed more nearly to conform to the applicable
provisions of the law.
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of
The right to dispose of property by will is governed entirely by statute. The law of therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
the case is here found in section 61 of the Code of Civil Procedure as amended by necessarily restrained the freedom of the testator in disposing of his property.
Act No. 2645, and in section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It However, in recent years the Supreme Court changed its attitude and has become
is further provided in the same section that "The attestation shall state the number of more liberal in the interpretation of the formalities in the execution of wills. This
sheets or pages used, upon which the will is written, and the fact that the testator liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May
signed the will and every page thereof, or caused some other person to write his 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir,
name, under his express direction, in the presence of three witnesses, and the latter G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
witnessed and signed the will and all pages thereof in the presence of the testator and 1941.
of each other." Codal section 634 provides that "The will shall be disallowed in
either of the following case: 1. If not executed and attested as in this Act provided." In the above mentioned decisions of our Supreme Court, it has practically gone back
The law not alone carefully makes use of the imperative, but cautiously goes further to the original provisions of Section 618 of the Code of Civil Procedure before its
and makes use of the negative, to enforce legislative intention. It is not within the amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
province of the courts to disregard the legislative purpose so emphatically and clearly declaration and to attain the main objective of the proposed Code in the liberalization
expressed. of the manner of executing wills, article 829 of the Project is recommended, which
reads:
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, "Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper
supra. (Emphases in the original text). pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was
But after the Gumban clarificatory pronouncement, there were decisions of the Court in fact executed and attested in substantial compliance with all the requirements of
that once more appeared to revive the seeming diversity of views that was earlier article 829."65
threshed out therein. The cases of Quinto vs. Morata,49 Rodriguez vs. Alcala,50
Enchevarria vs. Sarmiento,51 and Testate Estate of Toray52 went the way of the The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any
ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs. puzzle or difficulty, nor does it open the door to serious consequences. The later
Cartagena,54 De Ticson vs. De Gorostiza,55 Sebastian vs. Panganiban,56 Rodriguez decisions do tell us when and where to stop; they draw the dividing line with
vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. precision. They do not allow evidence aliunde to fill a void in any part of the
De Villa,61 Sabado vs. document or supply missing details that should appear in the will itself. They only
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the permit a probe into the will, an exploration into its confines, to ascertain its meaning
strict interpretation rule and established a trend toward an application of the liberal or to determine the existence or absence of the requisite formalities of law. This
view. clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results."
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification It may thus be stated that the rule, as it now stands, is that omissions which can be
of the substantial compliance rule, as it believed this rule to be in accord with the supplied by an examination of the will itself, without the need of resorting to
modern tendency to give a liberal approach to the interpretation of wills. Said rule extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
thus became what is now Article 809 of the Civil Code, with this explanation of the allowance to probate of the will being assailed. However, those omissions which
Code Commission: cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.67
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil WHEREFORE, the petition is hereby GRANTED and the impugned decision of
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had respondent court is hereby REVERSED and SET ASIDE. The court a quo is
previously upheld the strict compliance with the legal formalities and had even said accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
that the provisions of Section 618 of the Code of Civil Procedure, as amended (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to
regarding the contents of the attestation clause were mandatory, and non-compliance REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement of testator and each and every one of the witnesses; (2) to certify that after the signing
the estate of the said decedent. 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
SO ORDERED. 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
G.R. No. L-4067 November 29, 1951 other.

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO In our opinion, the attestation clause is fatally defective for failing to state that
GARCIA, petitioner, Antero Mercado caused Atty. Florentino Javier to write the testator's name under his
vs. express direction, as required by section 618 of the Code of Civil Procedure. The
JULIANA LACUESTA, ET AL., respondents. herein petitioner (who is appealing by way of certiorari from the decision of the
Court of Appeals) argues, however, that there is no need for such recital because the
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner. cross written by the testator after his name is a sufficient signature and the signature
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents. of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as
much a signature as a thumbmark, the latter having been held sufficient by this Court
PARAS, C.J.: in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55
Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
This is an appeal from a decision of the Court of Appeals disallowing the will of Lopez vs. Liboro, 81 Phil., 429.
Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and
contains the following attestation clause: It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature
We, the undersigned, by these presents to declare that the foregoing testament of reflection, we are not prepared to liken the mere sign of the cross to a thumbmark,
Antero Mercado was signed by himself and also by us below his name and of this and the reason is obvious. The cross cannot and does not have the trustworthiness of
attestation clause and that of the left margin of the three pages thereof. Page three the a thumbmark.
continuation of this attestation clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it bears the corresponding number in What has been said makes it unnecessary for us to determine there is a sufficient
letter which compose of three pages and all them were signed in the presence of the recital in the attestation clause as to the signing of the will by the testator in the
testator and witnesses, and the witnesses in the presence of the testator and all and presence of the witnesses, and by the latter in the presence of the testator and of each
each and every one of us witnesses. other.

In testimony, whereof, we sign this statement, this the third day of January, one Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So
thousand nine hundred forty three, (1943) A.D. ordered.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name
of Antero Mercado, followed below by "A reugo del testator" and the name of
Florentino Javier. Antero Mercado is alleged to have written a cross immediately
after his name. The Court of Appeals, reversing the judgement of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the
will was signed on all the left margins of the three pages and at the end of the will by
Atty. Florentino Javier at the express request of the testator in the presence of the
G.R. No. 93980 June 27, 1994 Q And when you were all signing this Exhibit "B" and "B-1", Exhibit "B" and
"B-1" which is the testament was passed around all of you so that each of you will
CLEMENTE CALDE, petitioner, sign consecutively?
vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, A Yes, sir.
respondents. Q Who was the first to sign?
A Calibia Lingdan Bulanglang.
Nestor P. Mondok for petitioner. Q After Calibia Lingdan Bulanglang was made to sign — I withdraw the
Lazaro Padong for private respondents. question. How did Calibia Lingdan Bulanglang sign the last will and testament?
A She asked Judge Tolete the place where she will affix her thumbmark so
Judge Tolete directed her hand or her thumb to her name.
PUNO, J.: Q After she signed, who was the second to sign allegedly all of you there
present?
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of A Jose Becyagen.
the Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Q With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?
Will and Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, A Ballpen.
1976. Q And after Jose Becyagen signed his name with the ballpen, who was the
next to sign?
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of A Me, sir.
property. She also left a Last Will and Testament, dated October 30, 1972, and a Q And Jose Becyagen passed you the paper and the ballpen, Exhibit "B" and
Codicil thereto, dated July 24, 1973. Both documents contained the thumbmarks of "B-1" plus the ballpen which used to sign so that you could sign your name, is that
decedent. They were also signed by three (3) attesting witnesses each, and correct?
acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public A Yes, sir.
Ex-Officio of Bauko, Mt. Province. Q And then after you signed, who was the next to sign the document, Exhibit
"B" and "B-1"?
Nicasio Calde, the executor named in the will, filed a Petition for its allowance A Hilario Coto-ong.
before the RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of Q So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1" and
the proceedings, and was duly substituted by petitioner. Private respondents, the ballpen so that he could sign his name as witness to the document, is it not?
relatives of decedent, opposed the Petitioner filed by Calde, on the following A Yes, sir.
grounds: that the will and codicil were written in Ilocano, a dialect that decedent did Q And that is the truth and you swear that to be the truth before the Honorable
not know; that decedent was mentally incapacitated to execute the two documents Court?
because of her advanced age, illness and deafness; that decedent’s thumbmarks were ATTY. DALOG:
procured through fraud and undue influence; and that the codicil was not executed in He already testified under oath, Your Honor.
accordance with law. COURT:
Witness may answer
On June 23, 1988, the trial court rendered judgment on the case, approving and A Yes, sir.
allowing decedent’s will and its codicil. The decision was appealed to and reversed For his part, Obanan Ticangan likewise admitted during cross-examination in regard
by the respondent Court of Appeals. It held: to the codicil that:
Q When you signed Exhibit "D" and "D-1", did you all sign with the same
. . . (T)he will and codicil could pass the safeguards under Article 805 of the New ballpen?
Civil Code but for one crucial factor of discrepancy in the color of ink when the A One.
instrumental witnesses affixed their respective signatures. When subjected to cross-
examination, Codcodio Nacnas as witness testified as follows: Such admissions from instrumental witnesses are indeed significant since they point
to no other conclusion than that the documents were not signed by them in their
Q And all of you signed on the same table? presence but on different occasions since the same ballpen used by them supposedly
A Yes, sir. in succession could not have produced a different color from blue to black and from
black to blue. In fact, the attestation clause followed the same pattern. The absurd . . . (Private respondents) pointed out however, that the assertions of petitioner’s
sequence was repeated when they signed the codicil, for which reason, We have no witnesses are rife with contradictions, particularly the fact that the latter’s signatures
other alternative but to disallow the Last Will and Codicil. Verily, if the witnesses on the documents in issue appear to have been written in ballpens of different colors
and testatrix used the same ballpen, then their signatures would have been in only contrary to the statements of said witnesses that all of them signed with only one
one color, not in various ones as shown in the documents. Moreover, the signatures, ballpen. The implication is that the subscribing witnesses to the Will and Codicil,
in different colors as they are, appear to be of different broadness, some being finer and the testatrix did not simultaneously sign each of the documents in one sitting but
than the others, indicating that, contrary to what the testamentary witnesses declared did it piecemeal — a violation of Art. 805 of the Code. This conclusion of the
on the witness stand, not only one ballpen was used, and, therefore, showing that the (private respondents) is purely circumstantial. From this particular set of facts,
documents were not signed by the testatrix and instrumental witnesses in the numerous inferences without limits can be drawn depending on which side of the
presence of one another. . . " (Rollo, pp. 44-46. Citations omitted.) fence one is on. For instance, considering the time interval that elapsed between the
making of the Will and Codicil, and up to the filing of the petition for probate, the
Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His possibility is not remote that one or two of the attesting witnesses may have forgotten
motion was denied by the respondent court in its Order, dated May 24, 1990. certain details that transpired when they attested the documents in question . . .
(Rollo, pp. 36-37.)
Thus, this appeal by petitioner who now puts in issue the correctness of the
respondent court’s conclusion that both decedent’s will and codicil were not A review of the facts and circumstances upon which respondent Court of Appeals
subscribed by the witnesses in the presence of the testator and of one another, based its impugned finding, however, fails to convince us that the testamentary
contrary to the requirements of Article 805 of the Civil Code. He contends that: documents in question were subscribed and attested by the instrumental witnesses
during a single occasion.
1. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR As sharply noted by respondent appellate court, the signatures of some attesting
WITH THE APPLICABLE DECISION OF THE SUPREME COURT BY witnesses in decedent’s will and its codicil were written in blue ink, while the others
CONCLUDING BASED ON PURE SPECULATION OR SURMISES AND were in black. This discrepancy was not explained by petitioner. Nobody of his six
WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH IS (6) witnesses testified that two pens were used by the signatories on the two
AN EVIDENCE OF SUBSTANCE THAT THE WILL AND THE CODICIL OF documents. In fact, two (2) of petitioner’s witnesses even testified that only one (1)
THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY HER ballpen was used in signing the two testamentary documents.
AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;
It is accepted that there are three sources from which a tribunal may properly acquire
2. THE HONORABLE COURT OF APPEALS HAS DECIDED A knowledge for making its decisions, namely: circumstantial evidence, testimonial
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR evidence, and real evidence or autoptic proference. Wigmore explains these sources
WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY as follows:
DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION
CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL OF If, for example, it is desired to ascertain whether the accused has lost his right hand
THE LATE CALIBIA LINGDAN BULANGLANG. and wears an iron hook in place of it, one source of belief on the subject would be
the testimony of a witness who had seen the arm; in believing this testimonial
The petition must fail. evidence, there is an inference from the human assertion to the fact asserted. A
second source of belief would be the mark left on some substance grasped or carried
The question in the case at bench is one of fact: whether or not, based on the by the accused; in believing this circumstantial evidence, there is an inference from
evidence submitted, respondent appellate court erred in concluding that both the circumstance to the thing producing it. A third source of belief remains, namely,
decedent’s Last Will and Testament, and its Codicil were subscribed by the the inspection by the tribunal of the accused’s arm. This source differs from the other
instrumental witnesses on separate occasions. As a general rule, factual findings of two in omitting any step of conscious inference or reasoning, and in proceeding by
the Court of Appeals are considered final and conclusive, and cannot be reviewed on direct self-perception, or autopsy.
appeal to this court. In the present instance, however, there is reason to make an
exception to that rule, since the finding of the respondent court is contrary to that of It is unnecessary, for present purposes, to ask whether this is not, after all, a third
the trial court, viz.: source of inference, i.e., an inference from the impressions or perceptions of the
tribunal to the objective existence of the thing perceived. The law does not need and
does not attempt to consider theories of psychology as to the subjectivity of G.R. No. 157451 December 16, 2005
knowledge or the mediateness of perception. It assumes the objectivity of external
nature; and, for the purposes of judicial investigation, a thing perceived by the LETICIA VALMONTE ORTEGA, Petitioner,
tribunal as existing does exist. vs.
JOSEFINA C. VALMONTE, Respondent.
There are indeed genuine cases of inference by the tribunal from things perceived to
other things unperceived — as, for example, from a person’s size, complexion, and DECISION
features, to his age; these cases of a real use of inference can be later more fully
distinguished . . . But we are here concerned with nothing more than matters directly PANGANIBAN, J.:
perceived — for example, that a person is of small height or is of dark complexion;
as to such matters, the perception by the tribunal that the person is small or large, or The law favors the probate of a will. Upon those who oppose it rests the burden of
that he has a dark or light complexion, is a mode of acquiring belief which is showing why it should not be allowed. In the present case, petitioner has failed to
independent of inference from either testimonial or circumstantial evidence. It is the discharge this burden satisfactorily. For this reason, the Court cannot attribute any
tribunal’s self-perception, or autopsy, of the thing itself. reversible error on the part of the appellate tribunal that allowed the probate of the
will.
From the point of view of the litigant party furnishing this source of belief, it may be
termed Autoptic Proference. 3 (Citations omitted.) The Case

In the case at bench, the autoptic proference contradicts the testimonial evidence Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court,
produced by petitioner. The will and its codicil, upon inspection by the respondent seeking to reverse and set aside the December 12, 2002 Decision2 and the March 7,
court, show in black and white — or more accurately, in black and blue — that more 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The
than one pen was used by the signatories thereto. Thus, it was not erroneous nor assailed Decision disposed as follows:
baseless for respondent court to disbelieve petitioner’s claim that both testamentary
documents in question were subscribed to in accordance with the provisions of Art. "WHEREFORE, the appeal is GRANTED, and the Decision appealed from is
805 of the Civil Code. REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte and ordering
Neither did respondent court err when it did not accord great weight to the testimony the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case
of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how be remanded to the court a quo for further and concomitant proceedings."4
the two testamentary documents were subscribed and attested to, starting from
decedent’s thumbmarking thereof, to the alleged signing of the instrumental The assailed Resolution denied petitioner’s Motion for Reconsideration.
witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Tolete’s
testimony is there any kind of explanation for the different-colored signatures on the The Facts
testaments.
The facts were summarized in the assailed Decision of the CA, as follows:
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of
respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 "x x x: Like so many others before him, Placido toiled and lived for a long time in
disallowing the Last Will and Testament, and the Codicil thereto, of the decedent the United States until he finally reached retirement. In 1980, Placido finally came
Calibia Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner. home to stay in the Philippines, and he lived in the house and lot located at #9200
Catmon St., San Antonio Village, Makati, which he owned in common with his sister
SO ORDERED. Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina who was then 28
years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5,
1982. But in a little more than two years of wedded bliss, Placido died on October 8,
1984 of a cause written down as COR PULMONALE.
"Placido executed a notarial last will and testament written in English and consisting IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983
of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. in Quezon City, Philippines.’
The first page contains the entire testamentary dispositions and a part of the
attestation clause, and was signed at the end or bottom of that page by the testator "The allowance to probate of this will was opposed by Leticia on the grounds that:
and on the left hand margin by the three instrumental witnesses. The second page
contains the continuation of the attestation clause and the acknowledgment, and was 1. Petitioner failed to allege all assets of the testator, especially those found in the
signed by the witnesses at the end of the attestation clause and again on the left hand USA;
margin. It provides in the body that:
2. Petitioner failed to state the names, ages, and residences of the heirs of the testator;
‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME or to give them proper notice pursuant to law;
OF THE LORD AMEN:
3. Will was not executed and attested as required by law and legal solemnities and
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, formalities were not complied with;
and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and
being of sound and disposing mind and memory, do hereby declare this to be my last 4. Testator was mentally incapable to make a will at the time of the alleged execution
will and testament: he being in an advance sate of senility;

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the 5. Will was executed under duress, or the influence of fear or threats;
Catholic Church in accordance with the rites and said Church and that a suitable
monument to be erected and provided my by executrix (wife) to perpetuate my 6. Will was procured by undue and improper influence and pressure on the part of
memory in the minds of my family and friends; the petitioner and/or her agents and/or assistants; and/or

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, 7. Signature of testator was procured by fraud, or trick, and he did not intend that the
one half (1/2) portion of the follow-described properties, which belongs to me as [co- instrument should be his will at the time of affixing his signature thereto;’
owner]:
and she also opposed the appointment as Executrix of Josefina alleging her want of
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in understanding and integrity.
Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of
Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased "At the hearing, the petitioner Josefina testified and called as witnesses the notary
sister (Ciriaca Valmonte), having share and share alike; public Atty. Floro Sarmiento who prepared and notarized the will, and the
instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie
b. 2-storey building standing on the above-described property, made of strong and Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega
mixed materials used as my residence and my wife and located at No. 9200 Catmon testified.
Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482,
Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte "According to Josefina after her marriage with the testator they lived in her parents
and myself as co-owners, share and share alike or equal co-owners thereof; house at Salingcob, Bacnotan, La Union but they came to Manila every month to get
his $366.00 monthly pension and stayed at the said Makati residence. There were
3. All the rest, residue and remainder of my real and personal properties, including times though when to shave off on expenses, the testator would travel alone. And it
my savings account bank book in USA which is in the possession of my nephew, and was in one of his travels by his lonesome self when the notarial will was made. The
all others whatsoever and wherever found, I give, devise and bequeath to my said will was witnessed by the spouses Eugenio and Feliza Gomez, who were their
wife, Josefina C. Valmonte; wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the
existence of the last will and testament of her husband, but just serendipitously found
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will it in his attache case after his death. It was only then that she learned that the testator
and testament, and it is my will that said executrix be exempt from filing a bond; bequeathed to her his properties and she was named the executrix in the said will. To
her estimate, the value of property both real and personal left by the testator is worth
more or less P100,000.00. Josefina declared too that the testator never suffered
mental infirmity because despite his old age he went alone to the market which is took care of him. During that time, the testator’s physical and mental condition
two to three kilometers from their home cooked and cleaned the kitchen and showed deterioration, aberrations and senility. This was corroborated by her daughter
sometimes if she could not accompany him, even traveled to Manila alone to claim Mary Jane Ortega for whom Placido took a fancy and wanted to marry.
his monthly pension. Josefina also asserts that her husband was in good health and
that he was hospitalized only because of a cold but which eventually resulted in his "Sifting through the evidence, the court a quo held that [t]he evidence adduced,
death. reduces the opposition to two grounds, namely:

"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, 1. Non-compliance with the legal solemnities and formalities in the execution and
testified that it was in the first week of June 1983 when the testator together with the attestation of the will; and
three witnesses of the will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed him on the terms and 2. Mental incapacity of the testator at the time of the execution of the will as he was
dispositions he wanted on the will, the notary public told them to come back on June then in an advanced state of senility
15, 1983 to give him time to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The testator and his witnesses "It then found these grounds extant and proven, and accordingly disallowed
returned on the appointed date but the notary public was out of town so they were probate."5
instructed by his wife to come back on August 9, 1983, and which they did. Before
the testator and his witnesses signed the prepared will, the notary public explained to Ruling of the Court of Appeals
them each and every term thereof in Ilocano, a dialect which the testator spoke and
understood. He likewise explained that though it appears that the will was signed by Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
the testator and his witnesses on June 15, 1983, the day when it should have been probate. The CA upheld the credibility of the notary public and the subscribing
executed had he not gone out of town, the formal execution was actually on August witnesses who had acknowledged the due execution of the will. Moreover, it held
9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 that the testator had testamentary capacity at the time of the execution of the will. It
because he did not like the document to appear dirty. The notary public also testified added that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did
that to his observation the testator was physically and mentally capable at the time he not make him a person of unsound mind.
affixed his signature on the will.
Hence, this Petition.7
"The attesting witnesses to the will corroborated the testimony of the notary public,
and testified that the testator went alone to the house of spouses Eugenio and Feliza Issues
Gomez at GSIS Village, Quezon City and requested them to accompany him to the
house of Atty. Floro Sarmiento purposely for his intended will; that after giving his Petitioner raises the following issues for our consideration:
instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that
they returned on June 15, 1983 for the execution of the will but were asked to come "I.
back instead on August 9, 1983 because of the absence of the notary public; that the
testator executed the will in question in their presence while he was of sound and Whether or not the findings of the probate court are entitled to great respect.
disposing mind and that he was strong and in good health; that the contents of the
will was explained by the notary public in the Ilocano and Tagalog dialect and that "II.
all of them as witnesses attested and signed the will in the presence of the testator
and of each other. And that during the execution, the testator’s wife, Josefina was not Whether or not the signature of Placido Valmonte in the subject will was procured by
with them. fraud or trickery, and that Placido Valmonte never intended that the instrument
should be his last will and testament.
"The oppositor Leticia declared that Josefina should not inherit alone because aside
from her there are other children from the siblings of Placido who are just as entitled "III.
to inherit from him. She attacked the mental capacity of the testator, declaring that at
the time of the execution of the notarial will the testator was already 83 years old and Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
was no longer of sound mind. She knew whereof she spoke because in 1983 Placido executed the subject will."8
lived in the Makati residence and asked Leticia’s family to live with him and they
In short, petitioner assails the CA’s allowance of the probate of the will of Placido Execution of a Will
Valmonte.
Petitioner does not dispute the due observance of the formalities in the execution of
This Court’s Ruling the will, but maintains that the circumstances surrounding it are indicative of the
existence of fraud. Particularly, she alleges that respondent, who is the testator’s wife
The Petition has no merit. and sole beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the
Main Issue: varying dates of the execution and the attestation of the will.

Probate of a Will Petitioner contends that it was "highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was] thrice
At the outset, we stress that only questions of law may be raised in a Petition for her age x x x and who happened to be [a] Fil-American pensionado,"11 thus casting
Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, doubt on the intention of respondent in seeking the probate of the will. Moreover, it
the evidence presented during the trial may be examined and the factual matters supposedly "defies human reason, logic and common experience"12 for an old man
resolved by this Court when, as in the instant case, the findings of fact of the with a severe psychological condition to have willingly signed a last will and
appellate court differ from those of the trial court.9 testament.

The fact that public policy favors the probate of a will does not necessarily mean that We are not convinced. Fraud "is a trick, secret device, false statement, or pretense,
every will presented for probate should be allowed. The law lays down the by which the subject of it is cheated. It may be of such character that the testator is
procedures and requisites that must be satisfied for the probate of a will.10 Verily, misled or deceived as to the nature or contents of the document which he executes, or
Article 839 of the Civil Code states the instances when a will may be disallowed, as it may relate to some extrinsic fact, in consequence of the deception regarding which
follows: the testator is led to make a certain will which, but for the fraud, he would not have
made."13
"Article 839. The will shall be disallowed in any of the following cases:
We stress that the party challenging the will bears the burden of proving the
(1) If the formalities required by law have not been complied with; existence of fraud at the time of its execution.14 The burden to show otherwise shifts
to the proponent of the will only upon a showing of credible evidence of fraud.15
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the Unfortunately in this case, other than the self-serving allegations of petitioner, no
time of its execution; evidence of fraud was ever presented.

(3) If it was executed through force or under duress, or the influence of fear, or It is a settled doctrine that the omission of some relatives does not affect the due
threats; execution of a will.16 That the testator was tricked into signing it was not
sufficiently established by the fact that he had instituted his wife, who was more than
(4) If it was procured by undue and improper pressure and influence, on the part of fifty years his junior, as the sole beneficiary; and disregarded petitioner and her
the beneficiary or of some other person; family, who were the ones who had taken "the cudgels of taking care of [the testator]
in his twilight years."17
(5) If the signature of the testator was procured by fraud;
Moreover, as correctly ruled by the appellate court, the conflict between the dates
(6) If the testator acted by mistake or did not intend that the instrument he signed appearing on the will does not invalidate the document, "because the law does not
should be his will at the time of affixing his signature thereto." even require that a [notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the testator, as well as
In the present case, petitioner assails the validity of Placido Valmonte’s will by by three or more credible witnesses who must also attest to it in the presence of the
imputing fraud in its execution and challenging the testator’s state of mind at the testator and of one another.19 Furthermore, the testator and the witnesses must
time. acknowledge the will before a notary public.20 In any event, we agree with the CA
that "the variance in the dates of the will as to its supposed execution and attestation
Existence of Fraud in the
was satisfactorily and persuasively explained by the notary public and the A The reason why we went there three times is that, the first week of June was out
instrumental witnesses."21 first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the
last will and testament. After that what they have talked what will be placed in the
The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, testament, what Atty. Sarmiento said was that he will go back on the 15th of June.
1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are When we returned on June 15, Atty. Sarmiento was not there so we were not able to
reproduced respectively as follows: sign it, the will. That is why, for the third time we went there on August 9 and that
was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)
"Atty. Floro Sarmiento:
Josie Collado:
Q You typed this document exhibit C, specifying the date June 15 when the testator
and his witnesses were supposed to be in your office? Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what
A Yes sir. transpired?
Q On June 15, 1983, did the testator and his witnesses come to your house? A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
A They did as of agreement but unfortunately, I was out of town. Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
xxxxxxxxx A Yes, Sir.
Q The document has been acknowledged on August 9, 1983 as per Q For what purpose?
acknowledgement appearing therein. Was this the actual date when the document A Our purpose is just to sign the will.
was acknowledged? Q Were you able to sign the will you mentioned?
A Yes sir. A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22
Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C? Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the
A On that particular date when it was acknowledged, August 9, 1983. commission of a fraud. There was no showing that the witnesses of the proponent
Q Why did you not make the necessary correction on the date appearing on the body stood to receive any benefit from the allowance of the will. The testimonies of the
of the document as well as the attestation clause? three subscribing witnesses and the notary are credible evidence of its due
A Because I do not like anymore to make some alterations so I put it in my own execution.23 Their testimony favoring it and the finding that it was executed in
handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10) accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.24
Eugenio Gomez:
Capacity to Make a Will
Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in
the acknowledgement it is dated August 9, 1983, will you look at this document and In determining the capacity of the testator to make a will, the Civil Code gives the
tell us this discrepancy in the date? following guidelines:
A We went to Atty. Sarmiento together with Placido Valmonte and the two
witnesses; that was first week of June and Atty. Sarmiento told us to return on the "Article 798. In order to make a will it is essential that the testator be of sound mind
15th of June but when we returned, Atty. Sarmiento was not there. at the time of its execution.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
A We returned on the 9th of August and there we signed. "Article 799. To be of sound mind, it is not necessary that the testator be in full
Q This August 9, 1983 where you said it is there where you signed, who were your possession of all his reasoning faculties, or that his mind be wholly unbroken,
companions? unimpaired, or shattered by disease, injury or other cause.
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)
"It shall be sufficient if the testator was able at the time of making the will to know
Felisa Gomez on cross-examination: the nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act.
Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
xxxxxxxxx "Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of making G.R. No. 122880 April 12, 2006
his dispositions is on the person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was publicly known to be insane, FELIX AZUELA, Petitioner,
the person who maintains the validity of the will must prove that the testator made it vs.
during a lucid interval." COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by
ERNESTO G. CASTILLO, Respondents.
According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate to be DECISION
disposed of, (2) the proper objects of the testator’s bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we find that the appellate TINGA, J.:
court was correct in holding that Placido had testamentary capacity at the time of the
execution of his will. The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
It must be noted that despite his advanced age, he was still able to identify accurately refusing to give legal recognition to the due execution of this document, the Court is
the kinds of property he owned, the extent of his shares in them and even their provided the opportunity to assert a few important doctrinal rules in the execution of
locations. As regards the proper objects of his bounty, it was sufficient that he notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
identified his wife as sole beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal validity. There being no A will whose attestation clause does not contain the number of pages on which the
showing of fraud in its execution, intent in its disposition becomes irrelevant. will is written is fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most importantly, a will
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which which does not contain an acknowledgment, but a mere jurat, is fatally defective.
held thus: Any one of these defects is sufficient to deny probate. A notarial will with all three
defects is just aching for judicial rejection.
"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees of mental There is a distinct and consequential reason the Civil Code provides a comprehensive
aberration generally known as insanity or idiocy, there are numberless degrees of catalog of imperatives for the proper execution of a notarial will. Full and faithful
mental capacity or incapacity and while on one hand it has been held that mere compliance with all the detailed requisites under Article 805 of the Code leave little
weakness of mind, or partial imbecility from disease of body, or from age, will not room for doubt as to the validity in the due execution of the notarial will. Article 806
render a person incapable of making a will; a weak or feebleminded person may likewise imposes another safeguard to the validity of notarial wills — that they be
make a valid will, provided he has understanding and memory sufficient to enable acknowledged before a notary public by the testator and the witnesses. A notarial
him to know what he is about to do and how or to whom he is disposing of his will executed with indifference to these two codal provisions opens itself to nagging
property. To constitute a sound and disposing mind, it is not necessary that the mind questions as to its legitimacy.
be unbroken or unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person shall actually The case stems from a petition for probate filed on 10 April 1984 with the Regional
be insane or of unsound mind."26 Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of June 1981. Petitioner is the son of the cousin of the decedent.
the Court of Appeals are AFFIRMED. Costs against petitioner.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in
SO ORDERED. full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, Pandacan, Manila Res. Cert. No. A-458365
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay Issued at Manila on Jan. 21, 1981
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko
lahat ang naunang ginawang habilin o testamento: LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang- Lot 61, San Gabriel, [Link]., Cavite Res.
ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
(Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng
aking pamilya at kaibigan; JUANITO ESTRERA
address: City Court Compound,
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking City of Manila Res. Cert. No. A574829
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, Issued at Manila on March 2, 1981.
yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng
nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Maynila.
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at
lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix (Sgd.)
Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones; PETRONIO Y. BAUTISTA

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng Doc. No. 1232 ; NOTARIO PUBLIKO
huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng Page No. 86 ; Until Dec. 31, 1981
piyansiya. Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
The three named witnesses to the will affixed their signatures on the left-hand
(Sgd.) margin of both pages of the will, but not at the bottom of the attestation clause.
EUGENIA E. IGSOLO
(Tagapagmana) The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
PATUNAY NG MGA SAKSI have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng purpose of its emergence was so it could be utilized as a defense in several court
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng cases filed by oppositor against petitioner, particularly for forcible entry and
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito. usurpation of real property, all centering on petitioner’s right to occupy the
properties of the decedent.3 It also asserted that contrary to the representations of
EUGENIA E. IGSOLO petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
address: 500 San Diego St. grandchildren, who were then residing abroad. Per records, it was subsequently
Sampaloc, Manila Res. Cert. No. A-7717-37 alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the
Issued at Manila on March 10, 1981. mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months.5
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Oppositor Geralda Castillo also argued that the will was not executed and attested to pages. The first page contains the entire text of the testamentary dispositions, and the
in accordance with law. She pointed out that decedent’s signature did not appear on second page contains the last portion of the attestation clause and acknowledgement.
the second page of the will, and the will was not properly acknowledged. These twin Such being so, the defects are not of a serious nature as to invalidate the will. For the
arguments are among the central matters to this petition. same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and
After due trial, the RTC admitted the will to probate, in an Order dated 10 August acknowledgment is not a fatal defect.
1992.6 The RTC favorably took into account the testimony of the three (3) witnesses
to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also As regards the oppositor’s assertion that the signature of the testatrix on the will is a
called to fore "the modern tendency in respect to the formalities in the execution of a forgery, the testimonies of the three subscribing witnesses to the will are convincing
will x x x with the end in view of giving the testator more freedom in expressing his enough to establish the genuineness of the signature of the testatrix and the due
last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will execution of the will.8
was not properly executed and attested to in accordance with law.
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
After a careful examination of the will and consideration of the testimonies of the substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated
subscribing and attesting witnesses, and having in mind the modern tendency in 17 August 1995, the Court of Appeals reversed the trial court and ordered the
respect to the formalities in the execution of a will, i.e., the liberalization of the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation
interpretation of the law on the formal requirements of a will with the end in view of clause failed to state the number of pages used in the will, thus rendering the will
giving the testator more freedom in expressing his last wishes, this Court is void and undeserving of probate.10
persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law. Hence, the present petition.

On the issue of lack of acknowledgement, this Court has noted that at the end of the Petitioner argues that the requirement under Article 805 of the Civil Code that "the
will after the signature of the testatrix, the following statement is made under the number of pages used in a notarial will be stated in the attestation clause" is merely
sub-title, "Patunay Ng Mga Saksi": directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling The solution to this case calls for the application of Articles 805 and 806 of the Civil
Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa Code, which we replicate in full.
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa
harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng Art. 805. Every will, other than a holographic will, must be subscribed at the end
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng thereof by the testator himself or by the testator's name written by some other person
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito." in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance with The testator or the person requested by him to write his name and the instrumental
the requirements of the law. witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
On the oppositor’s contention that the attestation clause was not signed by the in letters placed on the upper part of each page.
subscribing witnesses at the bottom thereof, this Court is of the view that the signing
by the subscribing witnesses on the left margin of the second page of the will The attestation shall state the number of pages used upon which the will is written,
containing the attestation clause and acknowledgment, instead of at the bottom and the fact that the testator signed the will and every page thereof, or caused some
thereof, substantially satisfies the purpose of identification and attestation of the will. other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
With regard to the oppositor’s argument that the will was not numbered correlatively pages thereof in the presence of the testator and of one another.
in letters placed on upper part of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will is composed of only two
If the attestation clause is in a language not known to the witnesses, it shall be the following distinction which petitioner is unable to rebut, and which we adopt
interpreted to them. with approval:

Art. 806. Every will must be acknowledged before a notary public by the testator and Even a cursory examination of the Will (Exhibit "D"), will readily show that the
the witnesses. The notary public shall not be required to retain a copy of the will, or attestation does not state the number of pages used upon which the will is written.
file another with the office of the Clerk of Court. Hence, the Will is void and undeserving of probate.

The appellate court, in its Decision, considered only one defect, the failure of the We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
attestation clause to state the number of pages of the will. But an examination of the versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
will itself reveals several more deficiencies. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even
if the attestation does not contain the number of pages used upon which the Will is
As admitted by petitioner himself, the attestation clause fails to state the number of written. However, the Decisions of the Supreme Court are not applicable in the
pages of the will.12 There was an incomplete attempt to comply with this requisite, a aforementioned appeal at bench. This is so because, in the case of "Manuel Singson
space having been allotted for the insertion of the number of pages in the attestation versus Emilia Florentino, et al., supra," although the attestation in the subject Will
clause. Yet the blank was never filled in; hence, the requisite was left uncomplied did not state the number of pages used in the will, however, the same was found in
with. the last part of the body of the Will:

The Court of Appeals pounced on this defect in reversing the trial court, citing in the "x x x
process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque,
the Court noted that among the defects of the will in question was the failure of the The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
attestation clause to state the number of pages contained in the will.15 In ruling that No. 2645, which requires that the attestation clause shall state the number of pages or
the will could not be admitted to probate, the Court made the following consideration sheets upon which the will is written, which requirement has been held to be
which remains highly relevant to this day: "The purpose of requiring the number of mandatory as an effective safeguard against the possibility of interpolation or
sheets to be stated in the attestation clause is obvious; the document might easily be omission of some of the pages of the will to the prejudice of the heirs to whom the
so prepared that the removal of a sheet would completely change the testamentary property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
dispositions of the will and in the absence of a statement of the total number of Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs.
sheets such removal might be effected by taking out the sheet and changing the Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
numbers at the top of the following sheets or pages. If, on the other hand, the total these cases seems to be that the attestation clause must contain a statement of the
number of sheets is stated in the attestation clause the falsification of the document number of sheets or pages composing the will and that if this is missing or is omitted,
will involve the inserting of new pages and the forging of the signatures of the it will have the effect of invalidating the will if the deficiency cannot be supplied, not
testator and witnesses in the margin, a matter attended with much greater by evidence aliunde, but by a consideration or examination of the will itself. But here
difficulty."16 the situation is different. While the attestation clause does not state the number of
sheets or pages upon which the will is written, however, the last part of the body of
The case of In re Will of Andrada concerned a will the attestation clause of which the will contains a statement that it is composed of eight pages, which circumstance
failed to state the number of sheets or pages used. This consideration alone was in our opinion takes this case out of the rigid rule of construction and places it within
sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed the realm of similar cases where a broad and more liberal view has been adopted to
out in the attesting clause is fatal."17 It was further observed that "it cannot be prevent the will of the testator from being defeated by purely technical
denied that the x x x requirement affords additional security against the danger that considerations." (page 165-165, supra) (Underscoring supplied)
the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18 In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v.
Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein "x x x
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and made 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 "substantial compliance rule" under Article 809. A cautionary note was struck
that it is really and actually composed of only two pages duly signed by the testatrix though by Justice J.B.L. Reyes as to how Article 809 should be applied:
and her instrumental witnesses. As earlier stated, the first page which contains the
entirety of the testamentary dispositions is signed by the testatrix at the end or at the x x x The rule must be limited to disregarding those defects that can be supplied by
bottom while the instrumental witnesses signed at the left margin. The other page an examination of the will itself: whether all the pages are consecutively numbered;
which is marked as "Pagina dos" comprises the attestation clause and the whether the signatures appear in each and every page; whether the subscribing
acknowledgment. The acknowledgment itself states that "this Last Will and witnesses are three or the will was notarized. All these are facts that the will itself
Testament consists of two pages including this page" (pages 200-201, supra) can reveal, and defects or even omissions concerning them in the attestation clause
(Underscoring supplied). 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
However, in the appeal at bench, the number of pages used in the will is not stated in attestation clause, being the only check against perjury in the probate proceedings.29
any part of the Will. The will does not even contain any notarial acknowledgment (Emphasis supplied.)
wherein the number of pages of the will should be stated.21
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code decision, considering that the failure to state the number of pages of the will in the
in 1950, at a time when the statutory provision governing the formal requirement of attestation clause is one of the defects which cannot be simply disregarded. In
wills was Section Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to the
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, will in the presence of the testator and of each other,30 the other omission cited by
considering that the requirement that the attestation state the number of pages of the Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
will is extant from Section 618.23 However, the enactment of the Civil Code in 1950
did put in force a rule of interpretation of the requirements of wills, at least insofar as Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
the attestation clause is concerned, that may vary from the philosophy that governed omission which can be supplied by an examination of the will itself, without the need
these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
forgery, or fraud, or undue and improper pressure and influence, defects and obstruct the allowance to probate of the will being assailed. However, those
imperfections in the form of attestation or in the language used therein shall not omissions which cannot be supplied except by evidence aliunde would result in the
render the will invalid if it is proved that the will was in fact executed and attested in invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a
substantial compliance with all the requirements of article 805." failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a
In the same vein, petitioner cites the report of the Civil Code Commission, which failure by the attestation clause to state that the witnesses signed in one another’s
stated that "the underlying and fundamental objective permeating the provisions on presence should be considered a fatal flaw since the attestation is the only textual
the [law] on [wills] in this project consists in the [liberalization] of the manner of guarantee of compliance.32
their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency] The failure of the attestation clause to state the number of pages on which the will
in respect to the formalities in the execution of wills."24 However, petitioner was written remains a fatal flaw, despite Article 809. The purpose of the law in
conveniently omits the qualification offered by the Code Commission in the very requiring the clause to state the number of pages on which the will is written is to
same paragraph he cites from their report, that such liberalization be "but with safeguard against possible interpolation or omission of one or some of its pages and
sufficient safeguards and restrictions to prevent the commission of fraud and the to prevent any increase or decrease in the pages.33 The failure to state the number of
exercise of undue and improper pressure and influence upon the testator."25 pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
Caneda v. Court of Appeals26 features an extensive discussion made by Justice ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
Regalado, speaking for the Court on the conflicting views on the manner of compliance with this requirement if the will states elsewhere in it how many pages it
interpretation of the legal formalities required in the execution of the attestation is comprised of, as was the situation in Singson and Taboada. However, in this case,
clause in wills.27 Uy Coque and Andrada are cited therein, along with several other there could have been no substantial compliance with the requirements under Article
cases, as examples of the application of the rule of strict construction.28 However, 805 since there is no statement in the attestation clause or anywhere in the will itself
the Code Commission opted to recommend a more liberal construction through the as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the thereof, be admitted as sufficient, it would be easy to add such clause to a will on a
formal requirements as enumerated under Article 805. Whatever the inclinations of subsequent occasion and in the absence of the testator and any or all of the
the members of the Code Commission in incorporating Article 805, the fact remains witnesses.39
that they saw fit to prescribe substantially the same formal requisites as enumerated
in Section 618 of the Code of Civil Procedure, convinced that these remained The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
effective safeguards against the forgery or intercalation of notarial wills.34 segregates the requirement that the instrumental witnesses sign each page of the will,
Compliance with these requirements, however picayune in impression, affords the from the requisite that the will be "attested and subscribed by [the instrumental
public a high degree of comfort that the testator himself or herself had decided to witnesses]." The respective intents behind these two classes of signature are distinct
convey property post mortem in the manner established in the will.35 The from each other. The signatures on the left-hand corner of every page signify, among
transcendent legislative intent, even as expressed in the cited comments of the Code others, that the witnesses are aware that the page they are signing forms part of the
Commission, is for the fruition of the testator’s incontestable desires, and not for the will. On the other hand, the signatures to the attestation clause establish that the
indulgent admission of wills to probate. witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will.
The Court could thus end here and affirm the Court of Appeals. However, an An unsigned attestation clause results in an unattested will. Even if the instrumental
examination of the will itself reveals a couple of even more critical defects that witnesses signed the left-hand margin of the page containing the unsigned attestation
should necessarily lead to its rejection. clause, such signatures cannot demonstrate these witnesses’ undertakings in the
clause, since the signatures that do appear on the page were directed towards a
For one, the attestation clause was not signed by the instrumental witnesses. While wholly different avowal.
the signatures of the instrumental witnesses appear on the left-hand margin of the
will, they do not appear at the bottom of the attestation clause which after all consists The Court may be more charitably disposed had the witnesses in this case signed the
of their averments before the notary public. attestation clause itself, but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental witnesses’ signatures on
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the each and every page, the fact must be noted that it is the attestation clause which
three witnesses to the will do not appear at the bottom of the attestation clause, contains the utterances reduced into writing of the testamentary witnesses
although the page containing the same is signed by the witnesses on the left-hand themselves. It is the witnesses, and not the testator, who are required under Article
margin."37 While three (3) Justices38 considered the signature requirement had been 805 to state the number of pages used upon which the will is written; the fact that the
substantially complied with, a majority of six (6), speaking through Chief Justice testator had signed the will and every page thereof; and that they witnessed and
Paras, ruled that the attestation clause had not been duly signed, rendering the will signed the will and all the pages thereof in the presence of the testator and of one
fatally defective. another. The only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same Thus, the subject will cannot be considered to have been validly attested to by the
is signed by the witnesses on the left-hand margin. instrumental witnesses, as they failed to sign the attestation clause.

We are of the opinion that the position taken by the appellant is correct. The Yet, there is another fatal defect to the will on which the denial of this petition
attestation clause is "a memorandum of the facts attending the execution of the will" should also hinge. The requirement under Article 806 that "every will must be
required by law to be made by the attesting witnesses, and it must necessarily bear acknowledged before a notary public by the testator and the witnesses" has also not
their signatures. An unsigned attestation clause cannot be considered as an act of the been complied with. The importance of this requirement is highlighted by the fact
witnesses, since the omission of their signatures at the bottom thereof negatives their that it had been segregated from the other requirements under Article 805 and
participation. entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
The petitioner and appellee contends that signatures of the three witnesses on the 805, and should be treated as of equivalent import.
left-hand margin conform substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable, because said signatures are in In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
compliance with the legal mandate that the will be signed on the left-hand margin of "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
all its pages. If an attestation clause not signed by the three witnesses at the bottom ng Maynila."40 By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in "logical end"44 of the will on its first page. Also, the will itself is not numbered
going before some competent officer or court and declaring it to be his act or deed.41 correlatively in letters on each page, but instead numbered with Arabic numerals.
It involves an extra step undertaken whereby the signor actually declares to the There is a line of thought that has disabused the notion that these two requirements
notary that the executor of a document has attested to the notary that the same is be construed as mandatory.45 Taken in isolation, these omissions, by themselves,
his/her own free act and deed. may not be sufficient to deny probate to a will. Yet even as these omissions are not
decisive to the adjudication of this case, they need not be dwelt on, though indicative
It might be possible to construe the averment as a jurat, even though it does not hew as they may be of a general lack of due regard for the requirements under Article 805
to the usual language thereof. A jurat is that part of an affidavit where the notary by whoever executed the will.
certifies that before him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that the document was All told, the string of mortal defects which the will in question suffers from makes
subscribed and sworn before the notary public, while in this case, the notary public the probate denial inexorable.
averred that he himself "signed and notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses the signing of and swearing in of the WHEREFORE, the petition is DENIED. Costs against petitioner.
executors of the document, which in this case would involve the decedent and the
instrumental witnesses. SO ORDERED.

Yet even if we consider what was affixed by the notary public as a jurat, the will G.R. No. 74695 September 14, 1993
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed and sworn to. The will does In the Matter of the Probate of the Last Will and Testament of the Deceased
not present any textual proof, much less one under oath, that the decedent and the Brigido Alvarado, CESAR ALVARADO, petitioner,
instrumental witnesses executed or signed the will as their own free act or deed. The vs.
acknowledgment made in a will provides for another all-important legal safeguard HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
against spurious wills or those made beyond the free consent of the testator. An QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
acknowledgement is not an empty meaningless act.43 The acknowledgment coerces Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
the testator and the instrumental witnesses to declare before an officer of the law that RINO, respondents.
they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal Vicente R. Redor for petitioner.
prosecution of persons who participate in the execution of spurious wills, or those Bayani Ma. Rino for and in his own behalf.
executed without the free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the will. BELLOSILLO, J.:

It may not have been said before, but we can assert the rule, self-evident as it is Before us is an appeal from the Decision dated 11 April 19861 of the First Civil
under Article 806. A notarial will that is not acknowledged before a notary public by Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
the testator and the witnesses is fatally defective, even if it is subscribed and sworn to which affirmed the Order dated 27 June 19832 of the Regional Trial Court of Sta.
before a notary public. Cruz, Laguna, admitting to probate the last will and testament3 with codicil4 of the
late Brigido Alvarado.
There are two other requirements under Article 805 which were not fully satisfied by
the will in question. We need not discuss them at length, as they are no longer On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
material to the entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will at the time awaiting
disposition of this case. The provision requires that the testator and the instrumental probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
witnesses sign each and every page of the will on the left margin, except the last; and
that all the pages shall be numbered correlatively in letters placed on the upper part As testified to by the three instrumental witnesses, the notary public and by private
of each page. In this case, the decedent, unlike the witnesses, failed to sign both respondent who were present at the execution, the testator did not read the final draft
pages of the will on the left margin, her only signature appearing at the so-called of the will himself. Instead, private respondent, as the lawyer who drafted the eight-
paged document, read the same aloud in the presence of the testator, the three The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose
instrumental witnesses and the notary public. The latter four followed the reading of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was
with their own respective copies previously furnished them. the double-reading requirement of said article complied with?

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng was not totally blind at the time the will and codicil were executed. However, his
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa vision on both eyes was only of "counting fingers at three (3) feet" by reason of the
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions glaucoma which he had been suffering from for several years and even prior to his
in the notarial will to generate cash for the testator's eye operation. Brigido was then first consultation with an eye specialist on
suffering from glaucoma. But the disinheritance and revocatory clauses were 14 December 1977.
unchanged. As in the case of the notarial will, the testator did not personally read the
final draft of the codicil. Instead, it was private respondent who read it aloud in his The point of dispute is whether the foregoing circumstances would qualify Brigido as
presence and in the presence of the three instrumental witnesses (same as those of the a "blind" testator under Art. 808 which reads:
notarial will) and the notary public who followed the reading using their own copies.
Art. [Link] the testator is blind, the will shall be read to him twice; once, by one of
A petition for the probate of the notarial will and codicil was filed upon the testator's the subscribing witnesses, and again, by the notary public before whom the will is
death on 3 January 1979 by private respondent as executor with the Court of First acknowledged.
Instance, now Regional Trial Court, of Siniloan, Laguna.5 Petitioner, in turn, filed an
Opposition on the following grounds: that the will sought to be probated was not Petitioner contends that although his father was not totally blind when the will and
executed and attested as required by law; that the testator was insane or otherwise codicil were executed, he can be so considered within the scope of the term as it is
mentally incapacitated to make a will at the time of its execution due to senility and used in Art. 808. To support his stand, petitioner presented before the trial court a
old age; that the will was executed under duress, or influence of fear and threats; that medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
it was procured by undue and improper pressure and influence on the part of the Opthalmology (Philippine Eye Research Institute),6 the contents of which were
beneficiary who stands to get the lion's share of the testator's estate; and lastly, that interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted
the signature of the testator was procured by fraud or trick. by private respondent.7 Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either printed or
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the handwritten matters as of 14 December 1977, the day of his first consultation.8
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased was On the other hand, the Court of Appeals, contrary to the medical testimony, held that
blind within the meaning of the law at the time his "Huling Habilin" and the codicil the testator could still read on the day the will and the codicil were executed but
attached thereto was executed; that since the reading required by Art. 808 of the chose not to do so because of "poor eyesight."9 Since the testator was still capable of
Civil Code was admittedly not complied with, probate of the deceased's last will and reading at that time, the court a quo concluded that Art. 808 need not be complied
codicil should have been denied. with.

On 11 April 1986, the Court of Appeals rendered the decision under review with the We agree with petitioner in this respect.
following findings: that Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the reading requirement of Art. Regardless of respondent's staunch contention that the testator was still capable of
808 was substantially complied with when both documents were read aloud to the reading at the time his will and codicil were prepared, the fact remains and this was
testator with each of the three instrumental witnesses and the notary public following testified to by his witnesses, that Brigido did not do so because of his "poor," 10
the reading with their respective copies of the instruments. The appellate court then "defective," 11 or "blurred"12 vision making it necessary for private respondent to
concluded that although Art. 808 was not followed to the letter, there was substantial do the actual reading for him.
compliance since its purpose of making known to the testator the contents of the
drafted will was served. The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind acknowledgement take place. There is no evidence, and petitioner does not so allege,
or incapable of reading the will himself (as when he is illiterate), is to make the that the contents of the will and codicil were not sufficiently made known and
provisions thereof known to him, so that he may be able to object if they are not in communicated to the testator. On the contrary, with respect to the "Huling Habilin,"
accordance with his wishes . . . the day of the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to is that Brigido Alvarado already acknowledged that the will was drafted in
those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since accordance with his expressed wishes even prior to 5 November 1977 when Atty.
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on Rino went to the testator's residence precisely for the purpose of securing his
the separate occasions of their execution due to his "poor," "defective," or "blurred" conformity to the draft. 15
vision, there can be no other course for us but to conclude that Brigido Alvarado
comes within the scope of the term "blind" as it is used in Art. 808. Unless the Moreover, it was not only Atty. Rino who read the documents on
contents were read to him, he had no way of ascertaining whether or not the lawyer 5 November and 29 December 1977. The notary public and the three instrumental
who drafted the will and codicil did so confortably with his instructions. Hence, to witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia
consider his will as validly executed and entitled to probate, it is essential that we de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
ascertain whether Art. 808 had been complied with. instrumental witnesses and the testator's physician) asked the testator whether the
contents of the document were of his own free will. Brigido answered in the
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be affirmative. 16 With four persons following the reading word for word with their
read twice; once, by one of the instrumental witnesses and, again, by the notary own copies, it can be safely concluded that the testator was reasonably assured that
public before whom the will was acknowledged. The purpose is to make known to what was read to him (those which he affirmed were in accordance with his
the incapacitated testator the contents of the document before signing and to give instructions), were the terms actually appearing on the typewritten documents. This
him an opportunity to object if anything is contrary to his instructions. is especially true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr. Evidente) and
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public another (Potenciano C. Ranieses) being known to him since childhood.
and an instrumental witness, it was the lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil who read the same aloud to the testator, The spirit behind the law was served though the letter was not. Although there
and read them only once, not twice as Art. 808 requires. should be strict compliance with the substantial requirements of the law in order to
insure the authenticity of the will, the formal imperfections should be brushed aside
Private respondent however insists that there was substantial compliance and that the when they do not affect its purpose and which, when taken into account, may only
single reading suffices for purposes of the law. On the other hand, petitioner defeat the testator's will. 17
maintains that the only valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental witness read the contents As a final word to convince petitioner of the propriety of the trial court's Probate
of the will and codicil to Brigido, probate of the latter's will and codicil should have Order and its affirmance by the Court of Appeals, we quote the following
been disallowed. pronouncement in Abangan v. Abangan, 18 to wit:

We sustain private respondent's stand and necessarily, the petition must be denied. The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
This Court has held in a number of occasions that substantial compliance is guaranty their truth and authenticity. Therefore the laws on the subject should be
acceptable where the purpose of the law has been satisfied, the reason being that the interpreted in such a way as to attain these primordial ends. But, on the other hand,
solemnities surrounding the execution of wills are intended to protect the testator also one must not lose sight of the fact that it is not the object of the law to restrain
from all kinds of fraud and trickery but are never intended to be so rigid and and curtail the exercise of the right to make a will. So when an interpretation already
inflexible as to destroy the testamentary privilege. 14 given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's
In the case at bar, private respondent read the testator's will and codicil aloud in the will, must be disregarded (emphasis supplied).
presence of the testator, his three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon being asked, that the contents Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in
read corresponded with his instructions. Only then did the signing and his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these
aside fro the mere reason that a legal requirement intended for his protection was not Complainant also questioned the absence of notation of the residence certificates of
followed strictly when such compliance had been rendered unnecessary by the fact the purported witnesses Noynay and Grajo. He alleged that their signatures had
that the purpose of the law, i.e., to make known to the incapacitated testator the likewise been forged and merely copied from their respective voters’ affidavits.
contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served. Complainant further asserted that no copy of such purported will was on file in the
archives division of the Records Management and Archives Office of the National
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Commission for Culture and the Arts (NCCA). In this connection, the certification of
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time the chief of the archives division dated September 19, 1999 stated:
that this case has remained pending, this decision is immediately executory. Costs
against petitioner. Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed
by BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office[’s]
SO ORDERED. files.6

A.C. No. 5281 February 12, 2008 Respondent in his comment dated July 6, 2001 claimed that the complaint against
him contained false allegations: (1) that complainant was a son of the decedent
MANUEL L. LEE, petitioner, Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged
vs. that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and
ATTY. REGINO B. TAMBAGO, respondent. testament was validly executed and actually notarized by respondent per affidavit7 of
Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint
RESOLUTION affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N.
Lee, Jr. xxx."9
CORONA, J.:
Respondent further stated that the complaint was filed simply to harass him because
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged the criminal case filed by complainant against him in the Office of the Ombudsman
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the "did not prosper."
ethics of the legal profession for notarizing a spurious last will and testament.
Respondent did not dispute complainant’s contention that no copy of the will was on
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., file in the archives division of the NCCA. He claimed that no copy of the contested
never executed the contested will. Furthermore, the spurious will contained the will could be found there because none was filed.
forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to
its execution. Lastly, respondent pointed out that complainant had no valid cause of action against
him as he (complainant) did not first file an action for the declaration of nullity of the
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim will and demand his share in the inheritance.
Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena
Lee, half-siblings of complainant. In a resolution dated October 17, 2001, the Court referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.10
The will was purportedly executed and acknowledged before respondent on June 30,
1965.1 Complainant, however, pointed out that the residence certificate2 of the In his report, the investigating commissioner found respondent guilty of violation of
testator noted in the acknowledgment of the will was dated January 5, 1962.3 pertinent provisions of the old Notarial Law as found in the Revised Administrative
Furthermore, the signature of the testator was not the same as his signature as donor Code. The violation constituted an infringement of legal ethics, particularly Canon
in a deed of donation4 (containing his purported genuine signature). Complainant 111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the
averred that the signatures of his deceased father in the will and in the deed of investigating commissioner of the IBP Commission on Bar Discipline recommended
donation were "in any way (sic) entirely and diametrically opposed from (sic) one the suspension of respondent for a period of three months.
another in all angle[s]."5
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with there was the conspicuous absence of a notation of the residence certificates of the
modification, the Report and Recommendation of the Investigating Commissioner of notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation
the above-entitled case, herein made part of this Resolution as Annex "A"; and, of the testator’s old residence certificate in the same acknowledgment was a clear
finding the recommendation fully supported by the evidence on record and the breach of the law. These omissions by respondent invalidated the will.
applicable laws and rules, and considering Respondent’s failure to comply with the
laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is As the acknowledging officer of the contested will, respondent was required to
hereby suspended from the practice of law for one year and Respondent’s notarial faithfully observe the formalities of a will and those of notarization. As we held in
commission is Revoked and Disqualified from reappointment as Notary Public for Santiago v. Rafanan:22
two (2) years.14
The Notarial Law is explicit on the obligations and duties of notaries public. They
We affirm with modification. are required to certify that the party to every document acknowledged before him
had presented the proper residence certificate (or exemption from the residence tax);
A will is an act whereby a person is permitted, with the formalities prescribed by and to enter its number, place of issue and date as part of such certification.
law, to control to a certain degree the disposition of his estate, to take effect after his
death.15 A will may either be notarial or holographic. These formalities are mandatory and cannot be disregarded, considering the degree
of importance and evidentiary weight attached to notarized documents.23 A notary
The law provides for certain formalities that must be followed in the execution of public, especially a lawyer,24 is bound to strictly observe these elementary
wills. The object of solemnities surrounding the execution of wills is to close the requirements.
door on bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity.16 The Notarial Law then in force required the exhibition of the residence certificate
upon notarization of a document or instrument:
A notarial will, as the contested will in this case, is required by law to be subscribed
at the end thereof by the testator himself. In addition, it should be attested and Section 251. Requirement as to notation of payment of [cedula] residence tax. –
subscribed by three or more credible witnesses in the presence of the testator and of Every contract, deed, or other document acknowledged before a notary public shall
one another.17 have certified thereon that the parties thereto have presented their proper [cedula]
residence certificate or are exempt from the [cedula] residence tax, and there shall be
The will in question was attested by only two witnesses, Noynay and Grajo. On this entered by the notary public as a part of such certificate the number, place of issue,
circumstance alone, the will must be considered void.18 This is in consonance with and date of each [cedula] residence certificate as aforesaid.25
the rule that acts executed against the provisions of mandatory or prohibitory laws
shall be void, except when the law itself authorizes their validity. The importance of such act was further reiterated by Section 6 of the Residence Tax
Act26 which stated:
The Civil Code likewise requires that a will must be acknowledged before a notary
public by the testator and the witnesses.19 The importance of this requirement is When a person liable to the taxes prescribed in this Act acknowledges any document
highlighted by the fact that it was segregated from the other requirements under before a notary public xxx it shall be the duty of such person xxx with whom such
Article 805 and embodied in a distinct and separate provision.20 transaction is had or business done, to require the exhibition of the residence
certificate showing payment of the residence taxes by such person xxx.
An acknowledgment is the act of one who has executed a deed in going before some
competent officer or court and declaring it to be his act or deed. It involves an extra In the issuance of a residence certificate, the law seeks to establish the true and
step undertaken whereby the signatory actually declares to the notary public that the correct identity of the person to whom it is issued, as well as the payment of
same is his or her own free act and deed.21 The acknowledgment in a notarial will residence taxes for the current year. By having allowed decedent to exhibit an
has a two-fold purpose: (1) to safeguard the testator’s wishes long after his demise expired residence certificate, respondent failed to comply with the requirements of
and (2) to assure that his estate is administered in the manner that he intends it to be both the old Notarial Law and the Residence Tax Act. As much could be said of his
done. failure to demand the exhibition of the residence certificates of Noynay and Grajo.

A cursory examination of the acknowledgment of the will in question shows that this On the issue of whether respondent was under the legal obligation to furnish a copy
particular requirement was neither strictly nor substantially complied with. For one, of the notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and Notaries public must observe with utmost care32 and utmost fidelity the basic
the witness. The notary public shall not be required to retain a copy of the will, or requirements in the performance of their duties, otherwise, the confidence of the
file another with the office of the Clerk of Court. (emphasis supplied) public in the integrity of notarized deeds will be undermined.33

Respondent’s failure, inadvertent or not, to file in the archives division a copy of the Defects in the observance of the solemnities prescribed by law render the entire will
notarized will was therefore not a cause for disciplinary action. invalid. This carelessness cannot be taken lightly in view of the importance and
delicate nature of a will, considering that the testator and the witnesses, as in this
Nevertheless, respondent should be faulted for having failed to make the necessary case, are no longer alive to identify the instrument and to confirm its contents.34
entries pertaining to the will in his notarial register. The old Notarial Law required Accordingly, respondent must be held accountable for his acts. The validity of the
the entry of the following matters in the notarial register, in chronological order: will was seriously compromised as a consequence of his breach of duty.35

1. nature of each instrument executed, sworn to, or acknowledged before him; In this connection, Section 249 of the old Notarial Law provided:

2. person executing, swearing to, or acknowledging the instrument; Grounds for revocation of commission. — The following derelictions of duty on the
part of a notary public shall, in the discretion of the proper judge of first instance, be
3. witnesses, if any, to the signature; sufficient ground for the revocation of his commission:

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

5. fees collected by him for his services as notary; (b) The failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law.
6. give each entry a consecutive number; and
xxx xxx xxx
7. if the instrument is a contract, a brief description of the substance of the
instrument.27 (f) The failure of the notary to make the proper notation regarding cedula
certificates.36
In an effort to prove that he had complied with the abovementioned rule, respondent
contended that he had crossed out a prior entry and entered instead the will of the These gross violations of the law also made respondent liable for violation of his
decedent. As proof, he presented a photocopy of his notarial register. To reinforce his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the
claim, he presented a photocopy of a certification28 stating that the archives division Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.
had no copy of the affidavit of Bartolome Ramirez.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of
A photocopy is a mere secondary evidence. It is not admissible unless it is shown the Philippines, uphold the Constitution and obey the laws of the land.40 For a
that the original is unavailable. The proponent must first prove the existence and lawyer is the servant of the law and belongs to a profession to which society has
cause of the unavailability of the original,29 otherwise, the evidence presented will entrusted the administration of law and the dispensation of justice.41
not be admitted. Thus, the photocopy of respondent’s notarial register was not
admissible as evidence of the entry of the execution of the will because it failed to While the duty to uphold the Constitution and obey the law is an obligation imposed
comply with the requirements for the admissibility of secondary evidence. on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should moreover
In the same vein, respondent’s attempt to controvert the certification dated make himself an example for others to emulate.42 Being a lawyer, he is supposed to
September 21, 199930 must fail. Not only did he present a mere photocopy of the be a model in the community in so far as respect for the law is concerned.43
certification dated March 15, 2000;31 its contents did not squarely prove the fact of
entry of the contested will in his notarial register. The practice of law is a privilege burdened with conditions.44 A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
engaged in professional misconduct.45 These sanctions meted out to errant lawyers G.R. No. L-36033 November 5, 1982
include disbarment, suspension and reprimand.
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL
Disbarment is the most severe form of disciplinary sanction.46 We have held in a OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
number of cases that the power to disbar must be exercised with great caution47 and vs.
should not be decreed if any punishment less severe – such as reprimand, suspension, HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern
or fine – will accomplish the end desired.48 The rule then is that disbarment is meted Leyte, (Branch III, Maasin), respondent.
out only in clear cases of misconduct that seriously affect the standing and character
of the lawyer as an officer of the court.49 Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
Respondent, as notary public, evidently failed in the performance of the elementary
duties of his office. Contrary to his claims that he "exercised his duties as Notary GUTIERREZ, JR. J.:
Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx," we This is a petition for review of the orders issued by the Court of First Instance of
find that he acted very irresponsibly in notarizing the will in question. Such Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the
recklessness warrants the less severe punishment of suspension from the practice of Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio
law. It is, as well, a sufficient basis for the revocation of his commission50 and his Taboada, Petitioner", which denied the probate of the will, the motion for
perpetual disqualification to be commissioned as a notary public.51 reconsideration and the motion for appointment of a special administrator.

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of In the petition for probate filed with the respondent court, the petitioner attached the
professional misconduct. He violated (1) the Lawyer’s Oath; (2) Rule 138 of the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-
Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Visayan dialect, the will consists of two pages. The first page contains the entire
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old testamentary dispositions and is signed at the end or bottom of the page by the
Notarial Law. testatrix alone and at the left hand margin by the three (3) instrumental witnesses.
The second page which contains the attestation clause and the acknowledgment is
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one signed at the end of the attestation clause by the three (3) attesting witnesses and at
year and his notarial commission REVOKED. Because he has not lived up to the the left hand margin by the testatrix.
trustworthiness expected of him as a notary public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary public. Since no opposition was filed after the petitioner's compliance with the requirement
of publication, the trial court commissioned the branch clerk of court to receive the
Let copies of this Resolution be furnished to all the courts of the land, the Integrated petitioner's evidence. Accordingly, the petitioner submitted his evidence and
Bar of the Philippines and the Office of the Bar Confidant, as well as made part of presented Vicente Timkang, one of the subscribing witnesses to the will, who
the personal records of respondent. testified on its genuineness and due execution.

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

Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex parte praying for a thirty-day period within which to
deliberate on any step to be taken as a result of the disallowance of the will. He also
asked that the ten-day period required by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of in the presence of the testatrix and of one another because the attesting witnesses to a
the will. However, the motion together with the previous manifestation and/or will attest not merely the will itself but also the signature of the testator. It is not
motion could not be acted upon by the Honorable Ramon C. Pamatian due to his sufficient compliance to sign the page, where the end of the will is found, at the left
transfer to his new station at Pasig, Rizal. The said motions or incidents were still hand margin of that page.
pending resolution when respondent Judge Avelino S. Rosal assumed the position of
presiding judge of the respondent court. On the other hand, the petitioner maintains that Article 805 of the Civil Code does
not make it a condition precedent or a matter of absolute necessity for the extrinsic
Meanwhile, the petitioner filed a motion for the appointment of special validity of the wig that the signatures of the subscribing witnesses should be
administrator. specifically located at the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature intended to place so heavy an
Subsequently, the new Judge denied the motion for reconsideration as well as the import on the space or particular location where the signatures are to be found as
manifestation and/or motion filed ex parte. In the same order of denial, the motion long as this space or particular location wherein the signatures are found is consistent
for the appointment of special administrator was likewise denied because of the with good faith and the honest frailties of human nature.
petitioner's failure to comply with the order requiring him to submit the names of' the
intestate heirs and their addresses. We find the petition meritorious.

The petitioner decided to file the present petition. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or
signed at its end by the testator himself or by the testator's name written by another
For the validity of a formal notarial will, does Article 805 of the Civil Code require person in his presence, and by his express direction, and attested and subscribed by
that the testatrix and all the three instrumental and attesting witnesses sign at the end three or more credible witnesses in the presence of the testator and of one another.
of the will and in the presence of the testatrix and of one another?
It must be noted that the law uses the terms attested and subscribed Attestation
Article 805 of the Civil Code provides: consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for the execution of a
Every will, other than a holographic will, must be subscribed at the end thereof by will and that the signature of the testator exists as a fact. On the other hand,
the testator himself or by the testator's name written by some other person in his subscription is the signing of the witnesses' names upon the same paper for the
presence, and by his express direction, and attested and subscribed by three or more purpose of Identification of such paper as the will which was executed by the
credible witnesses in the presence of the testator and of one another. testator. (Ragsdale v. Hill, 269 SW 2d 911).

The testator or the person requested by him to write his name and the instrumental Insofar as the requirement of subscription is concerned, it is our considered view that
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, the will in this case was subscribed in a manner which fully satisfies the purpose of
except the last, on the left margin, and all the pages shall be numbered correlatively Identification.
in letters placed on the upper part of each page.
The signatures of the instrumental witnesses on the left margin of the first page of
The attestation shall state the number of pages used upon which the will is written, the will attested not only to the genuineness of the signature of the testatrix but also
and the fact that the testator signed the will and every page thereof, or caused some the due execution of the will as embodied in the attestation clause.
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the While perfection in the drafting of a will may be desirable, unsubstantial departure
pages thereof in the presence of the testator and of one another. from the usual forms should be ignored, especially where the authenticity of the will
is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to the witnesses, it shall be interpreted to them. The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the
The respondent Judge interprets the above-quoted provision of law to require that, liberalization of the manner of their execution with the end in view of giving the
for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" testator more freedom in expressing his last wishes but with sufficient safeguards and
but an the three subscribing witnesses must also sign at the same place or at the end, restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator. This objective is in accord with the realm of similar cases where a broad and more liberal view has been adopted to
the modern tendency in respect to the formalities in the execution of a will" (Report prevent the will of the testator from being defeated by purely technical
of the Code commission, p. 103). considerations.

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a
not for the defect in the place of signatures of the witnesses, he would have found the similar liberal approach:
testimony sufficient to establish the validity of the will.
... Impossibility of substitution of this page is assured not only (sic) the fact that the
The objects of attestation and of subscription were fully met and satisfied in the testatrix and two other witnesses did sign the defective page, but also by its bearing
present case when the instrumental witnesses signed at the left margin of the sole the coincident imprint of the seal of the notary public before whom the testament was
page which contains all the testamentary dispositions, especially so when the will ratified by testatrix and all three witnesses. The law should not be so strictly and
was properly Identified by subscribing witness Vicente Timkang to be the same will literally interpreted as to penalize the testatrix on account of the inadvertence of a
executed by the testatrix. There was no question of fraud or substitution behind the single witness over whose conduct she had no control where the purpose of the law
questioned order. 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
We have examined the will in question and noticed that the attestation clause failed attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
to state the number of pages used in writing the will. This would have been a fatal de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
defect were it not for the fact that, in this case, it is discernible from the entire wig 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.
that it is really and actually composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first page which contains the WHEREFORE, the present petition is hereby granted. The orders of the respondent
entirety of the testamentary dispositions is signed by the testatrix at the end or at the court which denied the probate of tile will, the motion for reconsideration of the
bottom while the instrumental witnesses signed at the left margin. The other page denial of probate, and the motion for appointment of a special administrator are set
which is marked as "Pagina dos" comprises the attestation clause and the aside. The respondent court is ordered to allow the probate of the wig and to conduct
acknowledgment. The acknowledgment itself states that "This Last Will and further proceedings in accordance with this decision. No pronouncement on costs.
Testament consists of two pages including this page".
SO ORDERED.
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi
of these cases seems to be that the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if this is missing or is omitted,
it will have the effect of invalidating the will if the deficiency cannot be supplied, not
by evidence aliunde, but by a consideration or examination of the will itself. But here
the situation is different. While the attestation clause does not state the number of
sheets or pages upon which the will is written, however, the last part of the body of
the will contains a statement that it is composed of eight pages, which circumstance
in our opinion takes this case out of the rigid rule of construction and places it within
G.R. No. L-13431 November 12, 1919 In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of Act
In re will of Ana Abangan. No. 2645 is to know whether any sheet of the will has been removed. But, when all
GERTRUDIS ABANGAN, executrix-appellee, the dispositive parts of a will are written on one sheet only, the object of the statute
vs. disappears because the removal of this single sheet, although unnumbered, cannot be
ANASTACIA ABANGAN, ET AL., opponents-appellants. hidden.

Filemon Sotto for appellants. What has been said is also applicable to the attestation clause. Wherefore, without
M. Jesus Cuenco for appellee. considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the
AVANCEÑA, J.: three witnesses on the margin and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, referring specially to the signature
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana of the testatrix, we can add that same is not necessary in the attestation clause
Abangan's will executed July, 1916. From this decision the opponent's appealed. because this, as its name implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the testatrix, duly signed at the bottom by Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
Martin Montalban (in the name and under the direction of the testatrix) and by three which contains all the testamentary dispositions and is signed at the bottom by the
witnesses. The following sheet contains only the attestation clause duly signed at the testator and three witnesses and the second contains only the attestation clause and is
bottom by the three instrumental witnesses. Neither of these sheets is signed on the signed also at the bottom by the three witnesses, it is not necessary that both sheets
left margin by the testatrix and the three witnesses, nor numbered by letters; and be further signed on their margins by the testator and the witnesses, or be paged.
these omissions, according to appellants' contention, are defects whereby the probate
of the will should have been denied. We are of the opinion that the will was duly The object of the solemnities surrounding the execution of wills is to close the door
admitted to probate. 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
In requiring that each and every sheet of the will should also be signed on the left interpreted in such a way as to attain these primordal ends. But, on the other hand,
margin by the testator and three witnesses in the presence of each other, Act No. also one must not lose sight of the fact that it is not the object of the law to restrain
2645 (which is the one applicable in the case) evidently has for its object (referring and curtail the exercise of the right to make a will. So when an interpretation already
to the body of the will itself) to avoid the substitution of any of said sheets, thereby given assures such ends, any other interpretation whatsoever, that adds nothing but
changing the testator's dispositions. But when these dispositions are wholly written demands more requisites entirely unnecessary, useless and frustative of the testator's
on only one sheet signed at the bottom by the testator and three witnesses (as the last will, must be disregarded. [Link]
instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into As another ground for this appeal, it is alleged the records do not show that the
consideration, undoubtedly, the case of a will written on several sheets and must testarix knew the dialect in which the will is written. But the circumstance appearing
have referred to the sheets which the testator and the witnesses do not have to sign at in the will itself that same was executed in the city of Cebu and in the dialect of this
the bottom. A different interpretation would assume that the statute requires that this locality where the testatrix was a neighbor is enough, in the absence of any proof to
sheet, already signed at the bottom, be signed twice. We cannot attribute to the the contrary, to presume that she knew this dialect in which this will is written.
statute such an intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at the bottom For the foregoing considerations, the judgment appealed from is hereby affirmed
of the sheet guaranties its authenticity, another signature on its left margin would be with costs against the appellants. So ordered.
unneccessary; and if they do not guaranty, same signatures, affixed on another part
of same sheet, would add nothing. We cannot assume that the statute regards of such
importance the place where the testator and the witnesses must sign on the sheet that
it would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
G.R. No. L-16592 October 27, 1961 dismissing her first counterclaim is manifestly and palpably frivolous" and that her
appeal from said order insofar as it sets the case for hearing is "ostensibly dilatory,
ENRIQUE ICASIANO, plaintiff-appellee, aside from the fact that such setting order is interlocutory and, therefore, not
vs. immediately appealable." This motion was denied by a resolution of this Court dated
FELISA ICASIANO, defendant-appellant. February 17, 1960. We likewise, denied plaintiff's motion for reconsideration of said
resolution.
Jaime R. Nuevas for plaintiff-appellee.
Jose W. Diokno for defendant-appellant. The main issue in this appeal is whether or not the lower court erred in holding
without jurisdiction to entertain defendant's first counterclaim. Before passing upon
CONCEPCION, J.: the motive of such question, it should be noted, however, that the order granting
plaintiff's motion to dismiss said counterclaim is interlocutory in nature and, hence,
Appeal from an order of the Court of First Instance of Manila granting plaintiff's not appealable, until after judgment shall have been rendered on plaintiff's complaint
motion to dismiss defendant's first counterclaim and dismissing the latter. (Guanco, et al. vs. Monteblanco, et al., L-14871, April 29, 1961; Villasin vs. Seven-
Up Bottling Co. of the Philippines, L-13501, April 28, 1960; Caldera, et al. vs.
The facts are simple enough. In his complaint, dated July 31, 1959, plaintiff Enrique Balcueba, et al., 84 Phil. 304).
Icasiano sought to recover P20,000, plus interest and attorney's fees, from the
defendant, Felisa Icasiano. Within the reglementary period, or on November 9, 1959, However, plaintiff did not object to defendant's appeal from said order, except
the latter filed an answer admitting some allegations of the complaint, denying other insofar as it set the case for hearing. In other words, it acquiesced to said appeal as
allegations thereof and setting up special defenses, as well as two (2) counterclaims regards the dismissal of the aforementioned counterclaim. In fact, plaintiff interposed
— one for the sum of P150.00 allegedly borrowed by plaintiff from the defendant, no objection to defendant's amended record on appeal. Hence, even if the lower court
and another for moral and exemplary damages, attorney's fees and expenses of should have disapproved it, for the reason that said order of dismissal is interlocutory
litigation, allegedly suffered and incurred by the defendant in consequence of this in character, its order approving the amended record on appeal entailed, at most, an
suit, in such sum as the court may find just and reasonable. error of judgment that does not affect our jurisdiction to entertain the appeal
(Gatmaitan vs. Medina, L-14400, August 5, 1960; Salazar vs. Salazar, L-5823, April
On November 17, 1959, plaintiff moved (a) to dismiss the first counterclaims; (b) to 29, 1953). It may not be amiss to add that the allegation in the motion, filed by
strike out paragraph two (2) of defendant's answer; and (c) to set the case for hearing plaintiff with this Court, to dismiss the appeal, to the effect that the same is frivolous
on the merits. Despite defendants objection thereto, on December 7, 1959, the lower insofar as it seeks a review of the order dismissing defendant's first counterclaim, has
court granted the first prayer, denied the second prayer and set the case for hearing no merit, not only because a party can not be barred upon such ground from
on a stated date. Notice of the order to this effect was served on the defendant on appealing by writ of error, but, also, because we find that the lower court had erred in
December 17, 1959, who, three (3), days later, filed her notice of appeal and appeal issuing the order complained of.
bond. Plaintiff countered with a motion to strike out defendant's appeal "in so far as
said notice refers to the setting for hearing of the above entitled case on January 7, Indeed, regardless of whether the court of first instance may entertain counterclaims
1960, at 8:30 a.m., for the simple reason that said order, in so far as it sets a date for for less than P5,000, it must be noted that Articles 1278, 1279, 1286 and 1290, of our
the hearing of the above entitled case is interlocutory and, therefore, not appealable, Civil Code read: .
and for the further reason that the intended appeal from said setting order is plainly
frivolous and interposed only for the purpose of delay." This motion was denied in "ART. 1278. Compensation shall take place when two persons, in their own right,
an order dated December 19, 1959, which allowed defendant's appeal "from the are creditors and debtors of each other." .
order of December 7, 1959, insofar as it orders the dismissal of defendant's first
counterclaim, and setting the hearing of the case on January 7, 1960, at 8:30 a.m." ART. 1279. In order that compensation may be proper, it is necessary:
Upon denial by the lower court of plaintiff's motion for reconsideration of its last
order, defendant filed her record an appeal, which, after its amendment was approved (1) That each one of the obligors be bound principally, and that he be at the
"there being no opposition thereto." same time a principal creditor of the other;

Sometime after the transmittal of the amended record on appeal to this Court, or on (2) That both debts consist in a sum of money, or if the things due are
February 4, 1960, plaintiff filed a motion to dismiss the appeal upon the ground that consumable, they be of the same kind, and also of the same quality if the latter has
defendant's appeal "from the order of the trial court dated December 7, 1959, been stated;
(3) That the two debts be due;

(4) That they be liquidated and demandable;

(5) That over neither of them there be any retention or controversy, commenced
by third persons and communicated in due time to the debtor.

ART. 1286. Compensation takes place by operation of law, even though the
debts may be payable at different places, but there shall be an indemnity for expenses
of exchange or transportation to the place of payment.

ART. 1290. When all the requisites mentioned in article 1279 are present,
compensation takes effect by operation of law, and extinguishes both debts to the
concurrent amount, even though the creditors and debtors are not aware of the
compensation.

Pursuant to these provisions, defendant would have been entitled to deduct from
plaintiff's claim of P20,000 — if the latter were established — the sum of P150
involved in her first counterclaim, if the allegations thereof were true, even if no such
counterclaim had been set up in her answer, for "when all the requisites mentioned in
Article 1279 are present, compensation takes effect by operation of law, and
extinguishes both debts to the concurrent amount, even though the creditors and
debtors are not aware of" — and, hence, did not plead — "the compensation."
Moreover, it is clear from the record before us that said counterclaim was set up, not
so much to obtain money judgment against plaintiff, as by way of set-off, to reduce
the sum collectible by the latter, if successful, to the extent of the concurrent amount
(Moore's Federal Practice, Vol. 1, pp. 695-696) (See, also, Wisdom vs. Guess
Drycleaning Co., 5 Fed. Supl., 762-767).

WHEREFORE, the order appealed from is hereby reversed, insofar as it dismisses

defendant's first counter claim, and the case is, accordingly, remanded to the lower
court for further proceedings, not inconsistent with this decision with costs against
plaintiff-appellee, Enrique Icasiano. It is so ordered.