G.R. No.

L-32213 November 26, 1973 witness is the notary public himself, petitioner argues that the result is
that only two witnesses appeared before the notary public to
AGAPITA N. CRUZ, petitioner, acknowledge the will. On the other hand, private respondent-appellee,
vs. Manuel B. Lugay, who is the supposed executor of the will, following
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of the reasoning of the trial court, maintains that there is substantial
Branch I, Court of First Instance of Cebu, and MANUEL B. compliance with the legal requirement of having at least three
LUGAY, respondents. attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which,
ESGUERRA, J.: insofar as pertinent, reads as follows:

Petition to review on certiorari the judgment of the Court First Instance It is said that there are, practical reasons for upholding
of Cebu allowing the probate of the last will a testament of the late a will as against the purely technical reason that one of
Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving the witnesses required by law signed as certifying to an
spouse of the said decease opposed the allowance of the will (Exhibit acknowledgment of the testator's signature under oath
"E"), alleging the will was executed through fraud, deceit, rather than as attesting the execution of the instrument.
misrepresentation and undue influence; that the said instrument was
execute without the testator having been fully informed of the content After weighing the merits of the conflicting claims of the parties, We
thereof, particularly as to what properties he was disposing and that are inclined to sustain that of the appellant that the last will and
the supposed last will and testament was not executed in accordance testament in question was not executed in accordance with law. The
with law. Notwithstanding her objection, the Court allowed the probate notary public before whom the will was acknowledged cannot be
of the said last will and testament Hence this appeal by certiorari considered as the third instrumental witness since he cannot
which was given due course. acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
The only question presented for determination, on which the decision 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
of the case hinges, is whether the supposed last will and testament of assent, to admit; and "before" means in front or preceding in space or
Valente Z. Cruz (Exhibit "E") was executed in accordance with law, ahead of. (The New Webster Encyclopedic Dictionary of the English
particularly Articles 805 and 806 of the new Civil Code, the first Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
requiring at least three credible witnesses to attest and subscribe to English Language, p. 252; Webster's New International Dictionary 2d.
the will, and the second requiring the testator and the witnesses to p. 245.) Consequently, if the third witness were the notary public
acknowledge the will before a notary public. himself, he would have to avow assent, or admit his having signed the
will in front of himself. This cannot be done because he cannot split
Of the three instrumental witnesses thereto, namely Deogracias T. his personality into two so that one will appear before the other to
Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., acknowledge his participation in the making of the will. To permit such
one of them, the last named, is at the same time the Notary Public a situation to obtain would be sanctioning a sheer absurdity.
before whom the will was supposed to have been acknowledged.
Reduced to simpler terms, the question was attested and subscribed Furthermore, the function of a notary public is, among others, to guard
by at least three credible witnesses in the presence of the testator and against any illegal or immoral arrangement Balinon v. De Leon, 50 0.
of each other, considering that the three attesting witnesses must G. 583.) That function would defeated if the notary public were one of
appear before the notary public to acknowledge the same. As the third the attesting instrumental witnesses. For them he would be interested

SUCCESSION (Cases 24 September 2018) Page 1

sustaining the validity of the will as it directly involves him and the FOR ALL THE FOREGOING, the judgment appealed from is hereby
validity of his own act. It would place him in inconsistent position and reversed and the probate of the last will and testament of Valente Z.
the very purpose of acknowledgment, which is to minimize fraud Cruz (Exhibit "E") is declared not valid and hereby set aside. Cost
(Report of Code Commission p. 106-107), would be thwarted. against the appellee.

Admittedly, there are American precedents holding that notary public

may, in addition, act as a witness to the executive of the document he
has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA EN BANC
482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness G.R. No. L-7179 June 30, 1955
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 JAVELLANA, petitioner-appellee,
A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these vs.
authorities do not serve the purpose of the law in this jurisdiction or DOÑA MATEA LEDESMA, oppositor-appellant.
are not decisive of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as instrumental, REYES, J.B.L., J.:
subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also
By order of July 23, 1953, the Court of First Instance of Iloilo admitted
acknowledging witness, a situation not envisaged by Article 805 of the
to probate the documents in the Visayan dialect, marked Exhibits D
Civil Code which reads:
and E, as the testament and codicil duly executed by the deceased
Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and
ART. 806. Every will must be acknowledged before a
May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de
notary public by the testator and the witnesses. The Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea
notary public shall not be required to retain a copy of Ledesma, sister and nearest surviving relative of said deceased,
the will or file another with the office of the Clerk of appealed from the decision, insisting that the said exhibits were not
Court. [Emphasis supplied] executed in conformity with law. The appeal was made directly to this
Court because the value of the properties involved exceeded two
To allow the notary public to act as third witness, or one the attesting hundred thousand pesos.
and acknowledging witnesses, would have the effect of having only
two attesting witnesses to the will which would be in contravention of Originally the opposition to the probate also charged that the testatrix
the provisions of Article 80 be requiring at least three credible lacked testamentary capacity and that the dispositions were procured
witnesses to act as such and of Article 806 which requires that the through undue influence. These grounds were abandoned at the
testator and the required number of witnesses must appear before the hearing in the court below, where the issue was concentrated into
notary public to acknowledge the will. The result would be, as has three specific questions: (1) whether the testament of 1950 was
been said, that only two witnesses appeared before the notary public executed by the testatrix in the presence of the instrumental
for or that purpose. In the circumstances, the law would not be duly in witnesses; (2) whether the acknowledgment clause was signed and
observed. the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was

SUCCESSION (Cases 24 September 2018) Page 2

thereby rendered invalid and ineffective. These questions are the of the house, that was later proved to have been separated from the
same ones presented to us for resolution. deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from
The contestant argues that the Court below erred in refusing credence the kitchen. Later, on redirect examination, Allado sought to cure his
to her witnesses Maria Paderogao and Vidal Allado, cook and driver, testimony by claiming that he was upstairs in a room where the
respectively, of the deceased Apolinaria Ledesma. Both testified that servants used to eat when he heard Yap converse with his mistress;
on March 30, 1950, they saw and heard Vicente Yap (one of the but this correction is unavailing, since it was plainly induced by two
witnesses to the will) inform the deceased that he had brought the highly leading questions from contestant's counsel that had been
"testamento" and urge her to go to attorney Tabiana's office to sign it; previously ruled out by the trial Court. Besides, the contradiction is
that Da. Apolinaria manifested that she could not go, because she hardly consonant with this witness' 18 years of service to the
was not feeling well; and that upon Yap's insistence that the will had deceased.
to be signed in the attorney's office and not elsewhere, the deceased
took the paper and signed it in the presence of Yap alone, and Upon the other hand, the discrepancies in the testimony of the
returned it with the statement that no one would question it because instrumental witnesses urged upon us by the contestant-appellant,
the property involved was exclusively hers. concerning the presence or absence of Aurelio Montinola at the
signing of the testament or of the codicil, and the identity of the person
Our examination of the testimony on record discloses no grounds for who inserted the date therein, are not material and are largely
reversing the trial Court's rejection of the improbable story of the imaginary, since the witness Mrs. Tabiana confessed inability to
witnesses. It is squarely contradicted by the concordant testimony of remember all the details of the transaction. Neither are we impressed
the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and by the argument that the use of some Spanish terms in the codicil and
his wife Gloria Montinola, who asserted under oath that the testament testament (like legado, partes iguales, plena propiedad) is proof that
was executed by testatrix and witnesses in the presence of each its contents were not understood by the testatrix, it appearing in
other, at the house of the decedent on General Hughes St., Iloilo City, evidence that those terms are of common use even in the vernacular,
on March 30, 1950. And it is highly unlikely, and contrary to usage, and that the deceased was a woman of wide business interests.
that either Tabiana or Yap should have insisted that Da. Apolinaria, an
infirm lady then over 80 years old, should leave her own house in The most important variation noted by the contestants concerns that
order to execute her will, when all three witnesses could have easily signing of the certificate of acknowledgment (in Spanish) appended to
repaired thither for the purpose. Moreover, the cross-examination has the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
revealed fatal flaws in the testimony of Contestant's witnesses. Both executed after the enactment of the new Civil Code, and, therefore,
claim to have heard the word "testamento" for the first time when Yap had to be acknowledged before a notary public (Art. 806). Now, the
used it; and they claimed ability to recall that word four years later, instrumental witnesses (who happen to be the same ones who
despite the fact that the term meant nothing to either. It is well known attested the will of 1950) asserted that after the codicil had been
that what is to be remembered must first be rationally conceived and signed by the testatrix and the witnesses at the San Pablo Hospital,
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao the same was signed and sealed by notary public Gimotea on the
was positive that Yap brought the will, and that the deceased alone same occasion. On the other hand, Gimotea affirmed that he did not
signed it, precisely on March 30, 1950; but she could remember no do so, but brought the codicil to his office, and signed and sealed it
other date, nor give satisfactory explanation why that particular day there. The variance does not necessarily imply conscious perversion
stuck in her mind. Worse still, Allado claimed to have heard what of truth on the part of the witnesses, but appears rather due to a well-
allegedly transpired between Yap and Da. Apolinaria from the kitchen established phenomenon, the tendency of the mind, in recalling past

SUCCESSION (Cases 24 September 2018) Page 3

events, to substitute the usual and habitual for what differs slightly x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868,
870). DECISION

At any rate, as observed by the Court below, whether or not the

notary signed the certification of acknowledgment in the presence of PANGANIBAN, J.:
the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does
not require that the signing of the testator, witnesses and notary T he law favors the probate of a will. Upon those who oppose it rests
should be accomplished in one single act. A comparison of Articles the burden of showing why it should not be allowed. In the present
805 and 806 of the new Civil Code reveals that while testator and case, petitioner has failed to discharge this burden satisfactorily. For
witnesses sign in the presence of each other, all that is thereafter this reason, the Court cannot attribute any reversible error on the part
required is that "every will must be acknowledged before a notary of the appellate tribunal that allowed the probate of the will.
public by the testator and the witnesses" (Art. 806); i.e., that the latter
should avow to the certifying officer the authenticity of their signatures The Case
and the voluntariness of their actions in executing the testamentary
disposition. This was done in the case before us. The subsequent Before the Court is a Petition for Review[1] under Rule 45 of the Rules
signing and sealing by the notary of his certification that the testament of Court, seeking to reverse and set aside the December 12, 2002
was duly acknowledged by the participants therein is no part of the Decision[2] and the March 7, 2003 Resolution[3] of the Court of Appeals
acknowledgment itself nor of the testamentary act. Hence their (CA) in CA-GR CV No. 44296. The assailed Decision disposed as
separate execution out of the presence of the testatrix and her follows:
witnesses can not be said to violate the rule that testaments should be
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), WHEREFORE, the appeal is GRANTED, and the Decision appealed
or, as the Roman maxim puts it, "uno codem die ac tempore in eadem from is REVERSED and SET ASIDE. In its place judgment is
loco", and no reversible error was committed by the Court in so rendered approving and allowing probate to the said last will and
holding. It is noteworthy that Article 806 of the new Civil Code does testament of Placido Valmonte and ordering the issuance of letters
not contain words requiring that the testator and the witnesses should testamentary to the petitioner Josefina Valmonte. Let this case be
acknowledge the testament on the same day or occasion that it was remanded to the court a quo for further and concomitant
executed. proceedings.[4]

The decision admitting the will to probate is affirmed, with costs The assailed Resolution denied petitioners Motion for
against appellant. Reconsideration.

The Facts
LETICIA VALMONTE ORTEGA, G.R. No. 157451
Petitioner,
The facts were summarized in the assailed Decision of the CA, as
- versus -
follows:
JOSEFINA C. VALMONTE, Respondent.
x x x: Like so many others before him, Placido toiled and lived for a
Promulgated: December 16, 2005
long time in the United States until he finally reached retirement. In
SUCCESSION (Cases 24 September 2018) Page 4
1980, Placido finally came home to stay in the Philippines, and he a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
lived in the house and lot located at #9200 Catmon St., San Antonio situated in Makati, Metro Manila, described and covered by TCT No.
Village, Makati, which he owned in common with his sister Ciriaca 123468 of the Register of Deeds of Pasig, Metro-Manila registered
Valmonte and titled in their names in TCT 123468. Two years after his jointly as co-owners with my deceased sister (Ciriaca Valmonte),
arrival from the United States and at the age of 80 he wed Josefina having share and share alike;
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 b. 2-storey building standing on the above-described property,
years of wedded bliss, Placido died on October 8, 1984 of a cause made of strong and mixed materials used as my residence and my
written down as COR PULMONALE. wife and located at No. 9200 Catmon Street, Makati, Metro Manila
also covered by Tax Declaration No. A-025-00482, Makati, Metro-
Placido executed a notarial last will and testament written in English Manila, jointly in the name of my deceased sister, Ciriaca Valmonte
and consisting of two (2) pages, and dated June 15, 1983 but and myself as co-owners, share and share alike or equal co-owners
acknowledged only on August 9, 1983. The first page contains the thereof;
entire testamentary dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page by the testator and 3. All the rest, residue and remainder of my real and personal
on the left hand margin by the three instrumental witnesses. The properties, including my savings account bank book in USA which is
second page contains the continuation of the attestation clause and in the possession of my nephew, and all others whatsoever and
the acknowledgment, and was signed by the witnesses at the end of wherever found, I give, devise and bequeath to my said wife, Josefina
the attestation clause and again on the left hand margin. It provides in C. Valmonte;
the body that:
4. I hereby appoint my wife, Josefina C. Valmonte as sole
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE executrix of my last will and testament, and it is my will that said
NAME OF THE LORD AMEN: executrix be exempt from filing a bond;

I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag IN WITNESS WHEREOF, I have hereunto set my hand this 15th day
Valmonte, and a resident of 9200 Catmon Street, Makati, Metro of June 1983 in Quezon City, Philippines.
Manila, 83 years of age and being of sound and disposing mind and
memory, do hereby declare this to be my last will and testament:
The allowance to probate of this will was opposed by Leticia on the
1. It is my will that I be buried in the Catholic Cemetery, under the grounds that:
auspices of the Catholic Church in accordance with the rites and said
Church and that a suitable monument to be erected and provided my 1. Petitioner failed to allege all assets of the testator, especially those
by executrix (wife) to perpetuate my memory in the minds of my family found in the USA;
and friends;
2. Petitioner failed to state the names, ages, and residences of the
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. heirs of the testator; or to give them proper notice pursuant to law;
VALMONTE, one half (1/2) portion of the follow-described properties,
which belongs to me as [co-owner]: 3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;

SUCCESSION (Cases 24 September 2018) Page 5

4. Testator was mentally incapable to make a will at the time of the monthly pension. Josefina also asserts that her husband was in good
alleged execution he being in an advance sate of senility; health and that he was hospitalized only because of a cold but which
eventually resulted in his death.
5. Will was executed under duress, or the influence of fear or threats;
Notary Public Floro Sarmiento, the notary public who notarized the
6. Will was procured by undue and improper influence and pressure testators will, testified that it was in the first week of June 1983 when
on the part of the petitioner and/or her agents and/or assistants; the testator together with the three witnesses of the will went to his
and/or house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and
7. Signature of testator was procured by fraud, or trick, and he did not dispositions he wanted on the will, the notary public told them to come
intend that the instrument should be his will at the time of affixing his back on June 15, 1983 to give him time to prepare it. After he had
signature thereto; prepared the will the notary public kept it safely hidden and locked in
his drawer. The testator and his witnesses returned on the appointed
and she also opposed the appointment as Executrix of Josefina date but the notary public was out of town so they were instructed by
alleging her want of understanding and integrity. 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
At the hearing, the petitioner Josefina testified and called as public explained to them each and every term thereof in Ilocano, a
witnesses the notary public Atty. Floro Sarmiento who prepared and dialect which the testator spoke and understood. He likewise
notarized the will, and the instrumental witnesses spouses Eugenio explained that though it appears that the will was signed by the
Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, testator and his witnesses on June 15, 1983, the day when it should
the oppositor Leticia and her daughter Mary Jane Ortega testified. have been executed had he not gone out of town, the formal
execution was actually on August 9, 1983. He reasoned that he no
According to Josefina after her marriage with the testator they lived in longer changed the typewritten date of June 15, 1983 because he did
her parents house at Salingcob, Bacnotan, La Union but they came to not like the document to appear dirty. The notary public also testified
Manila every month to get his $366.00 monthly pension and stayed at that to his observation the testator was physically and mentally
the said Makati residence. There were times though when to shave off capable at the time he affixed his signature on the will.
on expenses, the testator would travel alone. And it was in one of his
travels by his lonesome self when the notarial will was made. The will The attesting witnesses to the will corroborated the testimony of the
was witnessed by the spouses Eugenio and Feliza Gomez, who were notary public, and testified that the testator went alone to the house of
their wedding sponsors, and by Josie Collado. Josefina said she had spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City
no knowledge of the existence of the last will and testament of her and requested them to accompany him to the house of Atty. Floro
husband, but just serendipitously found it in his attache case after his Sarmiento purposely for his intended will; that after giving his
death. It was only then that she learned that the testator bequeathed instructions to Atty. Floro Sarmiento, they were told to return on June
to her his properties and she was named the executrix in the said will. 15, 1983; that they returned on June 15, 1983 for the execution of the
To her estimate, the value of property both real and personal left by will but were asked to come back instead on August 9, 1983 because
the testator is worth more or less P100,000.00. Josefina declared too of the absence of the notary public; that the testator executed the will
that the testator never suffered mental infirmity because despite his in question in their presence while he was of sound and disposing
old age he went alone to the market which is two to three kilometers mind and that he was strong and in good health; that the contents of
from their home cooked and cleaned the kitchen and sometimes if she the will was explained by the notary public in the Ilocano and Tagalog
could not accompany him, even traveled to Manila alone to claim his dialect and that all of them as witnesses attested and signed the will in
SUCCESSION (Cases 24 September 2018) Page 6
the presence of the testator and of each other. And that during the Issues
execution, the testators wife, Josefina was not with them. Petitioner raises the following issues for our consideration:

The oppositor Leticia declared that Josefina should not inherit alone I. Whether or not the findings of the probate court are entitled to great
because aside from her there are other children from the siblings of respect.
Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the II. Whether or not the signature of Placido Valmonte in the subject will
execution of the notarial will the testator was already 83 years old and was procured by fraud or trickery, and that Placido Valmonte never
was no longer of sound mind. She knew whereof she spoke because intended that the instrument should be his last will and testament.
in 1983 Placido lived in the Makati residence and asked Leticias
family to live with him and they took care of him. During that time, the III. Whether or not Placido Valmonte has testamentary capacity at the
testators physical and mental condition showed deterioration, time he allegedly executed the subject will.[8]
aberrations and senility. This was corroborated by her daughter Mary
Jane Ortega for whom Placido took a fancy and wanted to marry. In short, petitioner assails the CAs allowance of the probate of the will
of Placido Valmonte.
Sifting through the evidence, the court a quo held that [t]he evidence
adduced, reduces the opposition to two grounds, namely: This Courts Ruling

1. Non-compliance with the legal solemnities and formalities in the The Petition has no merit.
execution and attestation of the will; and
Main Issue:
2. Mental incapacity of the testator at the time of the execution of Probate of a Will
the will as he was then in an advanced state of senility
At the outset, we stress that only questions of law may be raised in a
It then found these grounds extant and proven, and accordingly Petition for Review under Section 1 of Rule 45 of the Rules of Court.
disallowed probate.[5] As an exception, however, the evidence presented during the trial
may be examined and the factual matters resolved by this Court
Ruling of the Court of Appeals when, as in the instant case, the findings of fact of the appellate court
differ from those of the trial court.[9]
Reversing the trial court, the appellate court admitted the will of The fact that public policy favors the probate of a will does not
Placido Valmonte to probate. The CA upheld the credibility of the necessarily mean that every will presented for probate should be
notary public and the subscribing witnesses who had acknowledged allowed. The law lays down the procedures and requisites that must
the due execution of the will. Moreover, it held that the testator had be satisfied for the probate of a will.[10] Verily, Article 839 of the Civil
testamentary capacity at the time of the execution of the will. It added Code states the instances when a will may be disallowed, as follows:
that his sexual exhibitionism and unhygienic, crude and impolite
ways[6] did not make him a person of unsound mind.
Article 839. The will shall be disallowed in any of the following cases:
Hence, this Petition.[7]
(1) If the formalities required by law have not been complied with;

SUCCESSION (Cases 24 September 2018) Page 7

(2) If the testator was insane, or otherwise mentally incapable of We are not convinced. Fraud is a trick, secret device, false statement,
making a will, at the time of its execution; or pretense, by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the nature or
(3) If it was executed through force or under duress, or the contents of the document which he executes, or it may relate to some
influence of fear, or threats; extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would
(4) If it was procured by undue and improper pressure and not have made.[13]
influence, on the part of the beneficiary or of some other person;
We stress that the party challenging the will bears the burden of
(5) If the signature of the testator was procured by fraud; proving the existence of fraud at the time of its execution.[14] The
burden to show otherwise shifts to the proponent of the will only upon
(6) If the testator acted by mistake or did not intend that the a showing of credible evidence of fraud.[15]Unfortunately in this case,
instrument he signed should be his will at the time of affixing his other than the self-serving allegations of petitioner, no evidence of
signature thereto. fraud was ever presented.

In the present case, petitioner assails the validity of Placido It is a settled doctrine that the omission of some relatives does not
Valmontes will by imputing fraud in its execution and challenging the affect the due execution of a will.[16] That the testator was tricked into
testators state of mind at the time. signing it was not sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family, who were the
Existence of Fraud in the ones who had taken the cudgels of taking care of [the testator] in his
Execution of a Will twilight years.[17]

Petitioner does not dispute the due observance of the formalities in Moreover, as correctly ruled by the appellate court, the conflict
the execution of the will, but maintains that the circumstances between the dates appearing on the will does not invalidate the
surrounding it are indicative of the existence of fraud. Particularly, she document, because the law does not even require that a [notarial] will
alleges that respondent, who is the testators wife and sole beneficiary, x x x be executed and acknowledged on the same occasion.[18] More
conspired with the notary public and the three attesting witnesses important, the will must be subscribed by the testator, as well as by
in deceiving Placido to sign it. Deception is allegedly reflected in the three or more credible witnesses who must also attest to it in the
varying dates of the execution and the attestation of the will. presence of the testator and of one another.[19] Furthermore, the
testator and the witnesses must acknowledge the will before a notary
Petitioner contends that it was highly dubious for a woman at the public.[20] In any event, we agree with the CA that the variance in the
prime of her young life [to] almost immediately plunge into marriage dates of the will as to its supposed execution and attestation was
with a man who [was] thrice her age x x x and who happened to be [a] satisfactorily and persuasively explained by the notary public and the
Fil-American pensionado,[11] thus casting doubt on the intention of instrumental witnesses.[21]
respondent in seeking the probate of the will. Moreover, it supposedly
defies human reason, logic and common experience[12] for an old man The pertinent transcript of stenographic notes taken on June 11,
with a severe psychological condition to have willingly signed a last 1985, November 25, 1985, October 13, 1986, and October 21, 1987 --
will and testament. as quoted by the CA -- are reproduced respectively as follows:

SUCCESSION (Cases 24 September 2018) Page 8

Atty. Floro Sarmiento: Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
Q You typed this document exhibit C, specifying the date June 15 A We returned on the 9th of August and there we signed.
when the testator and his witnesses were supposed to be in your
office? Q This August 9, 1983 where you said it is there where you signed,
A Yes sir. who were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25,
Q On June 15, 1983, did the testator and his witnesses come to your 1985, pp. 7-8)
house?
A They did as of agreement but unfortunately, I was out of town. Felisa Gomez on cross-examination:

xxxxxxxxx Q Why did you have to go to the office of Atty. Floro Sarmiento, three
times?
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when xxxxxxxxx
the document was acknowledged?
A Yes sir. A The reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty. Sarmiento and
Q What about the date when the testator and the three witnesses Placido Valmonte about the last will and testament. After that what
affixed their respective signature on the first and second pages of they have talked what will be placed in the testament, what Atty.
exhibit C? Sarmiento said was that he will go back on the 15th of June. When we
A On that particular date when it was acknowledged, August 9, 1983. returned on June 15, Atty. Sarmiento was not there so we were not
able to sign it, the will. That is why, for the third time we went there on
Q Why did you not make the necessary correction on the date August 9 and that was the time we affixed our signature. (tsn, October
appearing on the body of the document as well as the attestation 13, 1986, pp. 4-6)
clause?
A Because I do not like anymore to make some alterations so I put it Josie Collado:
in my own handwriting August 9, 1983 on the acknowledgement. (tsn,
June 11, 1985, pp. 8-10) Q When you did not find Atty. Sarmiento in his house on June 15,
1983, what transpired?
Eugenio Gomez: A The wife of Atty. Sarmiento told us that we will be back on August 9,
1983.
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, Q And on August 9, 1983 did you go back to the house of Atty.
will you look at this document and tell us this discrepancy in the date? Sarmiento?
A We went to Atty. Sarmiento together with Placido Valmonte and the A Yes, Sir.
two witnesses; that was first week of June and Atty. Sarmiento told us
to return on the 15th of June but when we returned, Atty. Sarmiento Q For what purpose?
was not there. A Our purpose is just to sign the will.

SUCCESSION (Cases 24 September 2018) Page 9

Q Were you able to sign the will you mentioned? According to Article 799, the three things that the testator must have
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22] the ability to know to be considered of sound mind are as follows: (1)
Notably, petitioner failed to substantiate her claim of a grand the nature of the estate to be disposed of, (2) the proper objects of the
conspiracy in the commission of a fraud. There was no showing that testators bounty, and (3) the character of the testamentary act.
the witnesses of the proponent stood to receive any benefit from the Applying this test to the present case, we find that the appellate court
allowance of the will. The testimonies of the three subscribing was correct in holding that Placido had testamentary capacity at the
witnesses and the notary are credible evidence of its due time of the execution of his will.
execution.[23] Their testimony favoring it and the finding that it was
executed in accordance with the formalities required by law should be It must be noted that despite his advanced age, he was still able to
affirmed, absent any showing of ill motives.[24] identify accurately the kinds of property he owned, the extent of his
shares in them and even their locations. As regards the proper objects
of his bounty, it was sufficient that he identified his wife as sole
Capacity to Make a Will beneficiary. As we have stated earlier, the omission of some relatives
from the will did not affect its formal validity. There being no showing
In determining the capacity of the testator to make a will, the Civil of fraud in its execution, intent in its disposition becomes irrelevant.
Code gives the following guidelines: Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA,[25] which held thus:
Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution. "Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity, and
Article 799. To be of sound mind, it is not necessary that the testator that degrees of mental aberration generally known as insanity or
be in full possession of all his reasoning faculties, or that his mind be idiocy, there are numberless degrees of mental capacity or incapacity
wholly unbroken, unimpaired, or shattered by disease, injury or other and while on one hand it has been held that mere weakness of mind,
cause. or partial imbecility from disease of body, or from age, will not render
a person incapable of making a will; a weak or feebleminded person
It shall be sufficient if the testator was able at the time of making the may make a valid will, provided he has understanding and memory
will to know the nature of the estate to be disposed of, the proper sufficient to enable him to know what he is about to do and how or to
objects of his bounty, and the character of the testamentary act. whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or
Article 800. The law presumes that every person is of sound mind, in unimpaired or unshattered by disease or otherwise. It has been held
the absence of proof to the contrary. that testamentary incapacity does not necessarily require that a
person shall actually be insane or of unsound mind."[26]
The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before WHEREFORE, the Petition is DENIED, and the assailed Decision and
making his will was publicly known to be insane, the person who Resolution of the Court of Appeals are AFFIRMED. Costs against
maintains the validity of the will must prove that the testator made it petitioner. SO ORDERED.
during a lucid interval.
------------------------------------------------------------------------------------

SUCCESSION (Cases 24 September 2018) Page 10

 assert a few important doctrinal rules in the execution of notarial wills,
all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of

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

There is a distinct and consequential reason the Civil Code provides a

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

The case stems from a petition for probate filed on 10 April 1984 with
G.R. No. 122880 April 12, 2006 the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will of
FELIX AZUELA, Petitioner, Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is
vs. the son of the cousin of the decedent.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by
ERNESTO G. CASTILLO, Respondents. The will, consisting of two (2) pages and written in the vernacular
Pilipino, read in full:
DECISION
HULING HABILIN NI EUGENIA E. IGSOLO
TINGA, J.:
SA NGALAN NG MAYKAPAL, AMEN:
The core of this petition is a highly defective notarial will, purportedly
executed by Eugenia E. Igsolo (decedent), who died on 16 December AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
1982 at the age of 80. In refusing to give legal recognition to the due Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong
execution of this document, the Court is provided the opportunity to pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking

SUCCESSION (Cases 24 September 2018) Page 11

huling habilin at testamento, at binabali wala ko lahat ang naunang ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t
ginawang habilin o testamento: dahon ng kasulatan ito.

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La EUGENIA E. IGSOLO

Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at address: 500 San Diego St.
ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng Sampaloc, Manila Res. Cert. No. A-7717-37
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Issued at Manila on March 10, 1981.

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan QUIRINO AGRAVA

sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin address: 1228-Int. 3, Kahilum
sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero Pandacan, Manila Res. Cert. No. A-458365
28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din Issued at Manila on Jan. 21, 1981
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten LAMBERTO C. LEAÑO
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan address: Avenue 2, Blcok 7,
sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Lot 61, San Gabriel, G.MA., Cavite Res.
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
walang pasubali’t at kondiciones;
JUANITO ESTRERA
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang address: City Court Compound,
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na City of Manila Res. Cert. No. A574829
kailanman siyang mag-lagak ng piyansiya. Issued at Manila on March 2, 1981.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Hunyo, 1981. Lungsod ng Maynila.

(Sgd.) (Sgd.)
EUGENIA E. IGSOLO PETRONIO Y. BAUTISTA
(Tagapagmana)
Doc. No. 1232 ; NOTARIO PUBLIKO
PATUNAY NG MGA SAKSI Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong Series of 1981 TAN # 1437-977-81
ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya
niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng The three named witnesses to the will affixed their signatures on the
nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa left-hand margin of both pages of the will, but not at the bottom of the
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t attestation clause.
sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa

SUCCESSION (Cases 24 September 2018) Page 12

The probate petition adverted to only two (2) heirs, legatees and mind the modern tendency in respect to the formalities in the
devisees of the decedent, namely: petitioner himself, and one Irene execution of a will, i.e., the liberalization of the interpretation of the law
Lynn Igsolo, who was alleged to have resided abroad. Petitioner on the formal requirements of a will with the end in view of giving the
prayed that the will be allowed, and that letters testamentary be testator more freedom in expressing his last wishes, this Court is
issued to the designated executor, Vart Prague. persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
who represented herself as the attorney-in-fact of "the 12 legitimate On the issue of lack of acknowledgement, this Court has noted that at
heirs" of the decedent.2 Geralda Castillo claimed that the will is a the end of the will after the signature of the testatrix, the following
forgery, and that the true purpose of its emergence was so it could be statement is made under the sub-title, "Patunay Ng Mga Saksi":
utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
property, all centering on petitioner’s right to occupy the properties of dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
the decedent.3 It also asserted that contrary to the representations of tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
petitioner, the decedent was actually survived by 12 legitimate heirs, Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
namely her grandchildren, who were then residing abroad. Per kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon,
records, it was subsequently alleged that decedent was the widow of sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay
Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
child, Asuncion E. Igsolo, who predeceased her mother by three (3) bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang
months.5 panig ng lahat at bawa’t dahon ng kasulatan ito."

Oppositor Geralda Castillo also argued that the will was not executed The aforequoted declaration comprises the attestation clause and the
and attested to in accordance with law. She pointed out that acknowledgement and is considered by this Court as a substantial
decedent’s signature did not appear on the second page of the will, compliance with the requirements of the law.
and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition. On the oppositor’s contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this Court
After due trial, the RTC admitted the will to probate, in an Order dated is of the view that the signing by the subscribing witnesses on the left
10 August 1992.6 The RTC favorably took into account the testimony margin of the second page of the will containing the attestation clause
of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and acknowledgment, instead of at the bottom thereof, substantially
and Juanito Estrada. The RTC also called to fore "the modern satisfies the purpose of identification and attestation of the will.
tendency in respect to the formalities in the execution of a will x x x
with the end in view of giving the testator more freedom in expressing With regard to the oppositor’s argument that the will was not
his last wishes;"7 and from this perspective, rebutted oppositor’s numbered correlatively in letters placed on upper part of each page
arguments that the will was not properly executed and attested to in and that the attestation did not state the number of pages thereof, it is
accordance with law. worthy to note that the will is composed of only two pages. The first
page contains the entire text of the testamentary dispositions, and the
After a careful examination of the will and consideration of the second page contains the last portion of the attestation clause and
testimonies of the subscribing and attesting witnesses, and having in acknowledgement. Such being so, the defects are not of a serious

SUCCESSION (Cases 24 September 2018) Page 13

nature as to invalidate the will. For the same reason, the failure of the pages shall be numbered correlatively in letters placed on the upper
testatrix to affix her signature on the left margin of the second page, part of each page.
which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect. The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
As regards the oppositor’s assertion that the signature of the testatrix page thereof, or caused some other person to write his name, under
on the will is a forgery, the testimonies of the three subscribing his express direction, in the presence of the instrumental witnesses,
witnesses to the will are convincing enough to establish the and that the latter witnessed and signed the will and all the pages
genuineness of the signature of the testatrix and the due execution of thereof in the presence of the testator and of one another.
the will.8
If the attestation clause is in a language not known to the witnesses, it
The Order was appealed to the Court of Appeals by Ernesto Castillo, shall be interpreted to them.
who had substituted his since deceased mother-in-law, Geralda
Castillo. In a Decision dated 17 August 1995, the Court of Appeals Art. 806. Every will must be acknowledged before a notary public by
reversed the trial court and ordered the dismissal of the petition for the testator and the witnesses. The notary public shall not be required
probate.9 The Court of Appeals noted that the attestation clause failed to retain a copy of the will, or file another with the office of the Clerk of
to state the number of pages used in the will, thus rendering the will Court.
void and undeserving of probate.10
The appellate court, in its Decision, considered only one defect, the
Hence, the present petition. failure of the attestation clause to state the number of pages of the
will. But an examination of the will itself reveals several more
Petitioner argues that the requirement under Article 805 of the Civil deficiencies.
Code that "the number of pages used in a notarial will be stated in the
attestation clause" is merely directory, rather than mandatory, and As admitted by petitioner himself, the attestation clause fails to state
thus susceptible to what he termed as "the substantial compliance the number of pages of the will.12 There was an incomplete attempt to
rule."11 comply with this requisite, a space having been allotted for the
insertion of the number of pages in the attestation clause. Yet the
The solution to this case calls for the application of Articles 805 and blank was never filled in; hence, the requisite was left uncomplied
806 of the Civil Code, which we replicate in full. with.

Art. 805. Every will, other than a holographic will, must be subscribed The Court of Appeals pounced on this defect in reversing the trial
at the end thereof by the testator himself or by the testator's name court, citing in the process Uy Coque v. Navas L. Sioca13 and In re:
written by some other person in his presence, and by his express Will of Andrada.14 In Uy Coque, the Court noted that among the
direction, and attested and subscribed by three or more credible defects of the will in question was the failure of the attestation clause
witnesses in the presence of the testator and of one another. to state the number of pages contained in the will.15 In ruling that the
will could not be admitted to probate, the Court made the following
The testator or the person requested by him to write his name and the consideration which remains highly relevant to this day: "The purpose
instrumental witnesses of the will, shall also sign, as aforesaid, each of requiring the number of sheets to be stated in the attestation clause
and every page thereof, except the last, on the left margin, and all the is obvious; the document might easily be so prepared that the

SUCCESSION (Cases 24 September 2018) Page 14

removal of a sheet would completely change the testamentary in the case of "Manuel Singson versus Emilia Florentino, et al.,
dispositions of the will and in the absence of a statement of the supra," although the attestation in the subject Will did not state the
total number of sheets such removal might be effected by taking number of pages used in the will, however, the same was found in the
out the sheet and changing the numbers at the top of the last part of the body of the Will:
following sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of the "x x x
document will involve the inserting of new pages and the forging of
the signatures of the testator and witnesses in the margin, a matter The law referred to is article 618 of the Code of Civil Procedure, as
attended with much greater difficulty."16 amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the will is
The case of In re Will of Andrada concerned a will the attestation written, which requirement has been held to be mandatory as an
clause of which failed to state the number of sheets or pages used. effective safeguard against the possibility of interpolation or omission
This consideration alone was sufficient for the Court to declare of some of the pages of the will to the prejudice of the heirs to whom
"unanim[ity] upon the point that the defect pointed out in the attesting the property is intended to be bequeathed (In re Will of Andrada, 42
clause is fatal."17 It was further observed that "it cannot be denied that Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
the x x x requirement affords additional security against the danger Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
that the will may be tampered with; and as the Legislature has seen fit Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to
to prescribe this requirement, it must be considered material."18 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
Against these cited cases, petitioner cites Singson v. omitted, it will have the effect of invalidating the will if the deficiency
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed cannot be supplied, not by evidence aliunde, but by a consideration or
probate to the wills concerned therein despite the fact that the examination of the will itself. But here the situation is different. While
attestation clause did not state the number of pages of the will. Yet the attestation clause does not state the number of sheets or pages
the appellate court itself considered the import of these two cases, upon which the will is written, however, the last part of the body of the
and made the following distinction which petitioner is unable to rebut, will contains a statement that it is composed of eight pages, which
and which we adopt with approval: circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a
Even a cursory examination of the Will (Exhibit "D"), will readily show broad and more liberal view has been adopted to prevent the will of
that the attestation does not state the number of pages used upon the testator from being defeated by purely technical considerations."
which the will is written. Hence, the Will is void and undeserving of (page 165-165, supra) (Underscoring supplied)
probate.
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the
We are not impervious of the Decisions of the Supreme Court in notarial acknowledgement in the Will states the number of pages used
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and in the:
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation "x x x
does not contain the number of pages used upon which the Will is
written. However, the Decisions of the Supreme Court are not We have examined the will in question and noticed that the attestation
applicable in the aforementioned appeal at bench. This is so because, clause failed to state the number of pages used in writing the will. This

SUCCESSION (Cases 24 September 2018) Page 15

would have been a fatal defect were it not for the fact that, in this [expressing] his last wishes. This objective is in accord with the
case, it is discernible from the entire will that it is really and actually [modern tendency] in respect to the formalities in the execution of
composed of only two pages duly signed by the testatrix and her wills."24 However, petitioner conveniently omits the qualification
instrumental witnesses. As earlier stated, the first page which contains offered by the Code Commission in the very same paragraph he cites
the entirety of the testamentary dispositions is signed by the testatrix from their report, that such liberalization be "but with sufficient
at the end or at the bottom while the instrumental witnesses signed at safeguards and restrictions to prevent the commission of fraud and
the left margin. The other page which is marked as "Pagina dos" the exercise of undue and improper pressure and influence upon the
comprises the attestation clause and the acknowledgment. The testator."25
acknowledgment itself states that "this Last Will and Testament
consists of two pages including this page" (pages 200-201, supra) Caneda v. Court of Appeals26 features an extensive discussion made by
(Underscoring supplied). Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the execution of
However, in the appeal at bench, the number of pages used in the will the attestation clause in wills.27 Uy Coque and Andrada are cited therein,
is not stated in any part of the Will. The will does not even contain any along with several other cases, as examples of the application of the rule of
notarial acknowledgment wherein the number of pages of the will strict construction.28 However, the Code Commission opted to recommend a
should be stated.21 more liberal construction through the "substantial compliance rule" under
Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as
Both Uy Coque and Andrada were decided prior to the enactment of to how Article 809 should be applied:
the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section x x x The rule must be limited to disregarding those defects that can
be supplied by an examination of the will itself: whether all the pages
618 of the Code of Civil Procedure.22 Reliance on these cases are consecutively numbered; whether the signatures appear in each
remains apropos, considering that the requirement that the attestation and every page; whether the subscribing witnesses are three or the
state the number of pages of the will is extant from Section will was notarized. All these are facts that the will itself can reveal, and
618.23 However, the enactment of the Civil Code in 1950 did put in defects or even omissions concerning them in the attestation clause
force a rule of interpretation of the requirements of wills, at least can be safely disregarded. But the total number of pages, and
insofar as the attestation clause is concerned, that may vary from the whether all persons required to sign did so in the presence of
philosophy that governed these two cases. Article 809 of the Civil each other must substantially appear in the attestation clause,
Code states: "In the absence of bad faith, forgery, or fraud, or undue being the only check against perjury in the probate
and improper pressure and influence, defects and imperfections in the proceedings.29 (Emphasis supplied.)
form of attestation or in the language used therein shall not render the
will invalid if it is proved that the will was in fact executed and attested The Court of Appeals did cite these comments by Justice J.B.L.
in substantial compliance with all the requirements of article 805." Reyes in its assailed decision, considering that the failure to state the
number of pages of the will in the attestation clause is one of the
In the same vein, petitioner cites the report of the Civil Code defects which cannot be simply disregarded. In Caneda itself, the
Commission, which stated that "the underlying and fundamental Court refused to allow the probate of a will whose attestation clause
objective permeating the provisions on the [law] on [wills] in this failed to state that the witnesses subscribed their respective
project consists in the [liberalization] of the manner of their execution signatures to the will in the presence of the testator and of each
with the end in view of giving the testator more [freedom] in

SUCCESSION (Cases 24 September 2018) Page 16

other,30 the other omission cited by Justice J.B.L. Reyes which to his enumerated in Section 618 of the Code of Civil Procedure, convinced
estimation cannot be lightly disregarded. that these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these requirements,
Caneda suggested: "[I]t may thus be stated that the rule, as it now however picayune in impression, affords the public a high degree of
stands, is that omission which can be supplied by an examination of comfort that the testator himself or herself had decided to convey
the will itself, without the need of resorting to extrinsic evidence, will property post mortem in the manner established in the will.35 The
not be fatal and, correspondingly, would not obstruct the allowance to transcendent legislative intent, even as expressed in the cited
probate of the will being assailed. However, those omissions which comments of the Code Commission, is for the fruition of the
cannot be supplied except by evidence aliunde would result in the testator’s incontestable desires, and not for the indulgent
invalidation of the attestation clause and ultimately, of the will admission of wills to probate.
itself."31 Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact The Court could thus end here and affirm the Court of Appeals.
can be checked by a visual examination; while a failure by the However, an examination of the will itself reveals a couple of even
attestation clause to state that the witnesses signed in one another’s more critical defects that should necessarily lead to its rejection.
presence should be considered a fatal flaw since the attestation is the
only textual guarantee of compliance.32 For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the instrumental
The failure of the attestation clause to state the number of pages on witnesses appear on the left-hand margin of the will, they do not
which the will was written remains a fatal flaw, despite Article 809. appear at the bottom of the attestation clause which after all consists
The purpose of the law in requiring the clause to state the number of of their averments before the notary public.
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent Cagro v. Cagro36 is material on this point. As in this case, "the
any increase or decrease in the pages.33 The failure to state the signatures of the three witnesses to the will do not appear at the
number of pages equates with the absence of an averment on the bottom of the attestation clause, although the page containing the
part of the instrumental witnesses as to how many pages consisted same is signed by the witnesses on the left-hand margin."37 While
the will, the execution of which they had ostensibly just witnessed and three (3) Justices38 considered the signature requirement had been
subscribed to. Following Caneda, there is substantial compliance with substantially complied with, a majority of six (6), speaking through
this requirement if the will states elsewhere in it how many pages it is Chief Justice Paras, ruled that the attestation clause had not been
comprised of, as was the situation in Singson and Taboada. However, duly signed, rendering the will fatally defective.
in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the There is no question that the signatures of the three witnesses to the
attestation clause or anywhere in the will itself as to the number of will do not appear at the bottom of the attestation clause, although the
pages which comprise the will. page containing the same is signed by the witnesses on the left-hand
margin.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article We are of the opinion that the position taken by the appellant is
805. Whatever the inclinations of the members of the Code correct. The attestation clause is "a memorandum of the facts
Commission in incorporating Article 805, the fact remains that they attending the execution of the will" required by law to be made by the
saw fit to prescribe substantially the same formal requisites as attesting witnesses, and it must necessarily bear their signatures. An

SUCCESSION (Cases 24 September 2018) Page 17

unsigned attestation clause cannot be considered as an act of the under Article 805 to state the number of pages used upon which the
witnesses, since the omission of their signatures at the bottom thereof will is written; the fact that the testator had signed the will and every
negatives their participation. page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The
The petitioner and appellee contends that signatures of the three only proof in the will that the witnesses have stated these elemental
witnesses on the left-hand margin conform substantially to the law facts would be their signatures on the attestation clause.
and may be deemed as their signatures to the attestation clause. This
is untenable, because said signatures are in compliance with the legal Thus, the subject will cannot be considered to have been validly
mandate that the will be signed on the left-hand margin of all its attested to by the instrumental witnesses, as they failed to sign the
pages. If an attestation clause not signed by the three witnesses at attestation clause.
the bottom thereof, be admitted as sufficient, it would be easy to add
such clause to a will on a subsequent occasion and in the absence of Yet, there is another fatal defect to the will on which the denial of this
the testator and any or all of the witnesses.39 petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the
The Court today reiterates the continued efficacy of Cagro. Article 805 testator and the witnesses" has also not been complied with. The
particularly segregates the requirement that the instrumental importance of this requirement is highlighted by the fact that it had
witnesses sign each page of the will, from the requisite that the will be been segregated from the other requirements under Article 805 and
"attested and subscribed by [the instrumental witnesses]." The entrusted into a separate provision, Article 806. The non-observance
respective intents behind these two classes of signature are distinct of Article 806 in this case is equally as critical as the other cited flaws
from each other. The signatures on the left-hand corner of every page in compliance with Article 805, and should be treated as of equivalent
signify, among others, that the witnesses are aware that the page they import.
are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
statements contained in the attestation clause itself. Indeed, the wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
attestation clause is separate and apart from the disposition of the 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
will. An unsigned attestation clause results in an unattested will. Even can those words be construed as an acknowledgment. An
if the instrumental witnesses signed the left-hand margin of the page acknowledgment is the act of one who has executed a deed in going
containing the unsigned attestation clause, such signatures cannot before some competent officer or court and declaring it to be his act or
demonstrate these witnesses’ undertakings in the clause, since the deed.41 It involves an extra step undertaken whereby the signor
signatures that do appear on the page were directed towards a wholly actually declares to the notary that the executor of a document has
different avowal. attested to the notary that the same is his/her own free act and deed.

The Court may be more charitably disposed had the witnesses in this It might be possible to construe the averment as a jurat, even though
case signed the attestation clause itself, but not the left-hand margin it does not hew to the usual language thereof. A jurat is that part of an
of the page containing such clause. Without diminishing the value of affidavit where the notary certifies that before him/her, the document
the instrumental witnesses’ signatures on each and every page, the was subscribed and sworn to by the executor.42 Ordinarily, the
fact must be noted that it is the attestation clause which contains the language of the jurat should avow that the document was subscribed
utterances reduced into writing of the testamentary witnesses and sworn before the notary public, while in this case, the notary
themselves. It is the witnesses, and not the testator, who are required public averred that he himself "signed and notarized" the document.

SUCCESSION (Cases 24 September 2018) Page 18

Possibly though, the word "ninotario" or "notarized" encompasses the the will on the left margin, her only signature appearing at the so-
signing of and swearing in of the executors of the document, which in called "logical end"44 of the will on its first page. Also, the will itself is
this case would involve the decedent and the instrumental witnesses. not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has
Yet even if we consider what was affixed by the notary public as disabused the notion that these two requirements be construed as
a jurat, the will would nonetheless remain invalid, as the express mandatory.45Taken in isolation, these omissions, by themselves, may
requirement of Article 806 is that the will be "acknowledged", and not not be sufficient to deny probate to a will. Yet even as these
merely subscribed and sworn to. The will does not present any textual omissions are not decisive to the adjudication of this case, they need
proof, much less one under oath, that the decedent and the not be dwelt on, though indicative as they may be of a general lack of
instrumental witnesses executed or signed the will as their own free due regard for the requirements under Article 805 by whoever
act or deed. The acknowledgment made in a will provides for another executed the will.
all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not All told, the string of mortal defects which the will in question suffers
an empty meaningless act.43 The acknowledgment coerces the from makes the probate denial inexorable.
testator and the instrumental witnesses to declare before an officer of
the law that they had executed and subscribed to the will as their own WHEREFORE, the petition is DENIED. Costs against petitioner.
free act or deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons who SO ORDERED.
participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a further
degree of assurance that the testator is of certain mindset in making
the testamentary dispositions to those persons he/she had designated
in the will.

It may not have been said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public. [ G.R. NO. 174144, April 17, 2007 ]
BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A.
There are two other requirements under Article 805 which were not BIHIS, RESPONDENT.
fully satisfied by the will in question. We need not discuss them at
length, as they are no longer material to the DECISION
CORONA, J.:
disposition of this case. The provision requires that the testator and The Scriptures tell the story of the brothers Jacob and Esau[1], siblings
the instrumental witnesses sign each and every page of the will on the who fought bitterly over the inheritance of their father Isaac's estate.
left margin, except the last; and that all the pages shall be numbered Jurisprudence is also replete with cases involving acrimonious
correlatively in letters placed on the upper part of each page. In this conflicts between brothers and sisters over successional rights. This
case, the decedent, unlike the witnesses, failed to sign both pages of case is no exception.

SUCCESSION (Cases 24 September 2018) Page 19

 commissioned notary public for and in Caloocan City. The dispositive
On February 19, 1994, Felisa Tamio de Buenaventura, mother of portion of the resolution read:
petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis,
died at the Metropolitan Hospital in Tondo, Manila. WHEREFORE, in view of the foregoing, the Court finds, and so
declares that it cannot admit the last will and testament of the late
On May 24, 1994, petitioner filed a petition for the probate of the last Felisa Tamio de Buenaventura to probate for the reasons
will and testament of the decedent in Branch 95[2] of the Regional Trial hereinabove discussed and also in accordance with Article 839 [of the
Court of Quezon City where the case was docketed as Sp. Proc. No. Civil Code] which provides that if the formalities required by law have
Q-94-20661. not been complied with, the will shall be disallowed. In view thereof,
the Court shall henceforth proceed with intestate succession in regard
The petition alleged the following: petitioner was named as executrix to the estate of the deceased Felisa Tamio de Buenaventura in
in the decedent's will and she was legally qualified to act as such; the accordance with Article 960 of the [Civil Code], to wit: "Art. 960. Legal
decedent was a citizen of the Philippines at the time of her death; at or intestate succession takes place: (1) If a person dies without a will,
the time of the execution of the will, the testatrix was 79 years old, of or with a void will, or one which has subsequently lost its validity, xxx."
sound and disposing mind, not acting under duress, fraud or undue SO ORDERED.[3]
influence and was capacitated to dispose of her estate by will.
Petitioner elevated the case to the Court of Appeals but the appellate
Respondent opposed her elder sister's petition on the following court dismissed the appeal and affirmed the resolution of the trial
grounds: the will was not executed and attested as required by law; its court.[4]
attestation clause and acknowledgment did not comply with the
requirements of the law; the signature of the testatrix was procured by Thus, this petition.[5]
fraud and petitioner and her children procured the will through undue
and improper pressure and influence. Petitioner admits that the will was acknowledged by the testatrix and
the witnesses at the testatrix's residence in Quezon City before Atty.
In an order dated November 9, 1994, the trial court appointed Directo and that, at that time, Atty. Directo was a commissioned
petitioner as special administratrix of the decedent's estate. notary public for and in Caloocan City. She, however, asserts that the
Respondent opposed petitioner's appointment but subsequently fact that the notary public was acting outside his territorial jurisdiction
withdrew her opposition. Petitioner took her oath as temporary special did not affect the validity of the notarial will.
administratrix and letters of special administration were issued to her.
Did the will "acknowledged" by the testatrix and the instrumental
On January 17, 2000, after petitioner presented her evidence, witnesses before a notary public acting outside the place of his
respondent filed a demurrer thereto alleging that petitioner's evidence commission satisfy the requirement under Article 806 of the Civil
failed to establish that the decedent's will complied with Articles 804 Code? It did not.
and 805 of the Civil Code.
Article 806 of the Civil Code provides:
In a resolution dated July 6, 2001, the trial court denied the probate of
the will ruling that Article 806 of the Civil Code was not complied with ART. 806. Every will must be acknowledged before a notary public by
because the will was "acknowledged" by the testatrix and the the testator and the witnesses. The notary public shall not be required
witnesses at the testatrix's, residence at No. 40 Kanlaon Street, to retain a copy of the will, or file another with the office of the Clerk of
Quezon City before Atty. Macario O. Directo who was a Court.
SUCCESSION (Cases 24 September 2018) Page 20
One of the formalities required by law in connection with the execution public, within and for the said province, for the term ending on the first
of a notarial will is that it must be acknowledged before a notary public day of January, anno Domini nineteen hundred and _____.
by the testator and the witnesses.[6] This formal requirement is one of
the indispensable requisites for the validity of a will.[7] In other words, _________________
a notarial will that is not acknowledged before a notary public by the Judge of the Court of
testator and the instrumental witnesses is void and cannot be irst Instance[12] of said
accepted for probate. Province

An acknowledgment is the act of one who has executed a deed in SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary
going before some competent officer and declaring it to be his act or public in a province shall be co-extensive with the province. The
deed.[8] In the case of a notarial will, that competent officer is the jurisdiction of a notary public in the City of Manila shall be co-
notary public. extensive with said city. No notary shall possess authority to do any
notarial act beyond the limits of his jurisdiction.(emphases supplied)
The acknowledgment of a notarial will coerces the testator and the A notary public's commission is the grant of authority in his favor to
instrumental witnesses to declare before an officer of the law, the perform notarial acts.[13] It is issued "within and for" a particular
notary public, that they executed and subscribed to the will as their territorial jurisdiction and the notary public's authority is co-extensive
own free act or deed.[9]Such declaration is under oath and under pain with it. In other words, a notary public is authorized to perform notarial
of perjury, thus paving the way for the criminal prosecution of persons acts, including the taking of acknowledgments, within that territorial
who participate in the execution of spurious wills, or those executed jurisdiction only. Outside the place of his commission, he is bereft of
without the free consent of the testator.[10] It also provides a further power to perform any notarial act; he is not a notary public. Any
degree of assurance that the testator is of a certain mindset in making notarial act outside the limits of his jurisdiction has no force and effect.
the testamentary dispositions to the persons instituted as heirs or As this Court categorically pronounced in Tecson v. Tecson:[14]
designated as devisees or legatees in the will.[11]
An acknowledgment taken outside the territorial limits of the officer's
Acknowledgment can only be made before a competent officer, that jurisdiction is void as if the person taking it ware wholly without official
is, a lawyer duly commissioned as a notary public. character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in
In this connection, the relevant provisions of the Notarial Law provide: Quezon City, he lacked the authority to take the acknowledgment of
the testatrix and the instrumental witnesses. In the same vein, the
SECTION 237. Form of commission for notary public. -The testatrix and her witnesses could not have validly acknowledged the
appointment of a notary public shall be in writing, signed by the judge, will before him. Thus, Felisa Tamio de Buenaventura's last will and
and substantially in the following form: testament was, in effect, not acknowledged as required by law.

GOVERNMENT OF THE Moreover, Article 5 of the Civil Code provides:

REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________ ART. 5. Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes
This is to certify that ____________, of the municipality of ________ their validity.
in said province, was on the ___ day of __________, anno Domini
nineteen hundred and _______, appointed by me a notary
SUCCESSION (Cases 24 September 2018) Page 21
The violation of a mandatory or a prohibitory statute renders the act of interest, and to appoint a new one in her stead; and (2) to order the
illegal and void unless the law itself declares its continuing validity. Register of Deeds of Manila to annotate notice of lis pendens in TCT
Here, mandatory and prohibitory statutes were transgressed in the Nos. 31735, 81736 and 81737, registered in the name of
execution of the alleged "acknowledgment." The compulsory Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to
language of Article 806 of the Civil Code was not complied with and be properly belonging to the estate of the deceased Gliceria A. del
the interdiction of Article 240 of the Notarial Law was breached. Rosario.
Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo
Insofar as pertinent to the issues involved herein, the facts of these
were all completely void.
cases may be stated as follows:
The Court cannot turn a blind eye to Atty. Directo's participation in the Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
preparation, execution and unlawful "acknowledgment" of Felisa September 1965, leaving no descendants, ascendants, brother or
Tamio de Buenaventura's will. Had he exercised his notarial sister. At the time of her death, she was said to be 90 years old, more
commission properly, the intent of the law to effectuate the decedent's or less, and possessed of an estate consisting mostly of real
final statements[15] as expressed in her will would not have come to properties.
naught.[16] Hence, Atty. Directo should show cause why he should not
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a
be administratively sanctioned as a member of the bar and as an
niece of the deceased, petitioned the Court of First Instance of Manila
officer of the court.
for probate of the alleged last will and testament of Gliceria A. del
Rosario, executed on 29 December 1960, and for her appointment as
WHEREFORE, the petition is hereby DENIED. Costs against
special administrarix of the latter's estate, said to be valued at about
petitioner.
P100,000.00, pending the appointment of a regular administrator
thereof.
Let a copy of this decision be furnished the Commission on Bar
Discipline of the Integrated Bar of the Philippines for investigation, The petition was opposed separately by several groups of alleged
report and recommendation on the possible misconduct of Atty. heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will
Macario O. Directo. SO ORDERED. executed by Gliceria A. del Rosario on 9 June 1956; (2) Dr. Jaime
Rosario and children, relatives and legatees in both the 1956 and
[ GR No. L-26615, Apr 30, 1970 ] 32 SCRA 489 1960 wills; Antonio Jesus de Praga and Maria Natividad de Jesus,
REV. FATHER LUCIO V. GARCIA v. CONRADO M. VASQUEZ + wards of the deceased and legatees in the 1956 and 1960 wills;
(3) Remedios, Encarnacion and Eduardo, all surnamed Narciso;
DECISION (4) Natividad del Rosario Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa,
REYES, J.B.L., J.: surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, - the
G.R. No. L--27200 is an appeal from the order of the Court of First latter five groups of persons all claiming to be relatives of
Instance of Manila (in Sp. Proc. 62618) admitting to probate the Dona Gliceria within the fifth civil degree. The oppositions invariably
alleged last will and testament of the late Gliceria Avelino del Rosario, charged that the instrument executed in 1960 was not intended by the
dated 29 December 1960, G. R. Nos. L-26615 and L-26864 are deceased to be her true will; that the signature of the deceased
separate petitions for mandamus filed by certain alleged heirs of said appearing in the will was procured through undue and improper
decedent seeking (1) to compel the probate court to remove Consuelo pressure and influence on the part of the beneficiaries and/or other
S. Gozales-Precilla as special administratrix of the estate, for conflict persons; that the testatrix did not know the object of her bounty; that
the instrument itself reveals irregularities in its execution, and that the
SUCCESSION (Cases 24 September 2018) Page 22
formalities required by law for such execution have not been complied On 17 December 1965, the same oppositors prayed the court for an
with. order directing the Special Administratrix to deposit with the Clerk of
Court all certificates of title belonging to the estate. It was alleged that
Oppositor Lucio V. Garcia, who also presented for probate the 1956
on 22 October 1965, or after her appointment, petitioner Consuelo
will of the deceased, joined the group of Dr. Jaime Rosario in
Gonzales Vda. de Precilla, in her capacity as special administratrix of
registering opposition to the appointment of petitioner Consuelo S.
the estate of the deceased Gliceria A. del Rosario, filed with Branch
Gonzales Vda. de Precilla as special administratrix, on the ground
IV of the Court of First Instance of Manila a motion for the issuance of
that the latter possesses interest adverse to the estate. After the
new copies of the owner's duplicates of certain certificates of title in
parties were duly heard, the probate court, in its order of 2 October
the name of Gliceria del Rosario, supposedly needed by her "in the
1965, granted petitioner's prayer and appointed her
preparation of the inventory" of the properties constituting the
specialadministratrix of the estate upon a bond for P30,000.00. The
estate. The motion having been granted, new copies of the owner's
order was premised on the fact that petitioner was managing the
duplicates of certificates appearing in the name of Gliceria del Rosario
properties belonging to the estate even during the lifetime of the
(among which were TCT Nos. 66201, 66202 and 66204) were issued
deceased, and to appoint another person as administrator or co-
on 15 November 1965. On 8 December 1965, according to
administrator at that stage of the proceeding would only result in
the oppositors, the same special administratrix presented to the
further confusion and difficulties.
Register of Deeds the deed of sale involving the properties covered
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the by TCT Nos. 66201, 66202 and 66204 supposedly executed
probate court an urgent motion to require the Hongkong & Shanghai by Gliceria del Rosario on 10 January 1961 in favor of
Bank to report all withdrawals made against the funds of the Alfonso Precilla, and, in consequence, said certificates of title were
deceased after 2 September 1965. The court denied this motion on cancelled and new certificates (Nos. 81735, 81736 and 81737) were
22 October 1965 for being premature, it being unaware that such issued in the name of Alfonso Precilla, married to Consuelo S.
deposit in the name of the deceased existed.[1] Gonzales y Narciso.
On 14 December 1965, the same sets of oppositors, Dr. Jaime On 25 August 1966, the Court issued an order admitting to probate
Rosario and children, Antonio Jesus de Praga, Natividad de Jesus the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the
and Fr. Lucio V. Garcia, petitioned the court for the immediate due execution of the will, the probate court took note that no evidence
removal of the specialadministratrix. It was their claim that the had been presented to establish that the testatrix was not of sound
special administratrix and her deceased husband, mind when the will was executed; that the fact that she had prepared
Alfonso Precilla,[2]had caused Gliceria A. del Rosario to execute a an earlier will did not prevent her from executing another one
simulated and fraudulent deed of absolute sale dated 10 January thereafter; that the fact that the 1956 will consisted of 12 pages
1961 allegedly conveying unto said spouses for the paltry sum of whereas the 1960 testament was contained in one page does not
P30,000.00 ownership of 3 parcels of land and the improvements render the latter invalid that the erasures and alterations in the
thereon located in Quiapo and San Nicolas, Manila, with a total instrument were insignificant to warrant its rejection, that the
assessed value of P334,050.00. Oppositors contended that since it is inconsistencies in the testimonies of the instrumental witnesses which
the duty of the administrator to protect and conserve the properties of were noted by the oppositors are even indicative of their
the estate, and it may become necessary that an action for the truthfulness. The probate court, also considering that petitioner had
annulment of the deed of sale and for recovery of the aforementioned already shown capacity to administer the properties of the estate and
parcels of land be filed against the special administratrix, as wife and that from the provisions of the will she stands as the person most
heir of Alfonso Precilla, the removal of the said administratrix was concerned and interested therein, appointed said petitioner
imperative. regular administratrix with a bond for P50,000.00. From this order all

SUCCESSION (Cases 24 September 2018) Page 23

the oppositors appealed, the case being docketed in this Court as G. a lis pendens notice in the aforementioned titles, contending that the
R. No. L-27200. matter of removal and appointment of the administratrix, involving
TCT Nos. 81736, 81736, and 81737, was already before the Supreme
Then, on 13 September 1966, the probate court resolved the opposi-
Court. Upon denial of this motion on 12 November 1
tors' motion of 14 December 1965 for the removal of the then
966,oppositors filed another mandamus action, this time against the
special administratrix, as follows:
probate court and the Register of Deeds. The case was docketed and
"It would seem that the main purpose of the motion to remove the given due course in this Court as G. R. No. L-26864.
special administratrix and to appoint another one in her stead, is in
Foremost of the questions to be determined here concerns the cor-
order that an action may be filed against the special administratrix for
rectness of the order allowing the probate of the 1960 will.
the annulment of the deed of sale executed by the decedent on
January 10, 1961. Under existing documents, the properties sold The records of the probate proceeding fully establish the fact that the
pursuant to the said deed of absolute sale no longer forms part of the testatrix, Gliceria A. del Rosario, during her lifetime, executed two
estate. The alleged conflict of interest is accordingly not between the wills: one on 9 June 1956 consisting of 12 pages and written in
estate and third parties, but between different claimants of the same Spanish, a language that she knew and spoke, witnessed by Messrs.
estate. If it is desired by the movants that an action be filed by them Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
to annul the aforesaid deed of absolute sale, it is not necessary that acknowledged before notary public Jose Ayala; and another, dated 29
the special administratrix be removed and that another one be December 1960, consisting of 1 page and written in Tagalog,
appointed to file such action, Such a course of action would only witnessed by Messrs. Vicente Rosales, Francisco Decena, and
produce confusion and difficulties in the settlement of the Francisco Lopez and acknowledged before notary
estate. The movants may file the aforesaid proceedings, preferably in public Remigio M. Tividad.
an independent action, to secure the nullity of the deed of absolute
Called to testify on the due execution of the 1960 will, instrumental
sale even without leave of this court."
witnesses Decena, Lopez and Rosales uniformly declared that they
As regard the motion of 17 December 1965 asking for the deposit in
were individually requested by Alfonso Precilla (the late husband of
court of the titles in the name of the decedent, the same was also
petitioner special administratrix) to witness the execution of the last
denied, for the reason that if the movants were referring to the old
will of Doña Gliceria A. del Rosario; that they arrived at the house of
titles, they could no longer be produced, and if they meant the new
the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
duplicate copies thereof that were issued at the instance of the
afternoon of 29 December 1960; that the testatrix at the time was
special administratrix, there would be no necessity therefor, because
apparently of clear and sound mind, although she was being aided
they were already cancelled and other certificates were issued in the
by Precilla when she walked;[3] that the will, which was already
name of Alfonso Precilla, This order precipitated the oppositors' filing
prepared, was first read "silently' by the testatrix herself before she
in this Court of a petition for mandamus (G. R. No. L-26615, Rev.
signed it;[4] that the three witnesses thereafter signed the will in the
Fr. Lucio V. Garcia, et al, vs. Hon. Judge Conrado M. Vasquez, et al),
presence of the testatrix and the notary public and of one
which was given due course on 6 October 1966.
another. There is also testimony that after the testatrix and the
On 15 December 1965, with that motion for removal pending in this witnesses to the will acknowledged the instrument to be their
Court, the oppositors requested the Register of Deeds of Manila to voluntary act and deed, the notary public asked for their respective
annotate a notice of lis pendens in the records of TCT Nos. 81736, residence certificates which were handed to him by Alfonso Precilla,
81736, and 81737 in the name of Alfonso Precilla. And when said clipped together;[5] that after comparing them with the numbers
official refused to do so, they applied to the probate court (in Sp. Proc. already written on the will, the notary public filled in the blanks in the
No. 62618) for an order to compel the Register of Deeds to annotate instrument with the date, 29 January 1960, before he affixed his

SUCCESSION (Cases 24 September 2018) Page 24

signature and seal thereto. [6] They also testified that on that occasion prescription of glasses had a vision of 20 over 60 (20/60) and for the
no pressure or influence has been exerted by any person upon the left eye with her correction 20 over 300 (20/300).
testatrix to execute the will. "Q In layman's language, Doctor, what is the significance of that
notation that the right had a degree of 20 over 60 (20/60)?
Of course, the interest and active participation of Alfonso Precilla In
"A It meant that that eye at least would be able to recognize objects
the signing of this 1960 will are evident from the records. The will
or persons at a minimum distance of twenty feet.
appeared to have been prepared by one who is not conversant with
"Q But would that grade enable the patient to read print?
the spelling of Tagalogwords, and it has been shown that
"A Apparently that is only a record for distance vision, for distance
Alfonso Precilla is a Cebuano who speaks Tagalog with
sight, not for near."
a Visayan accent.[7] The witnesses to the will, two of whom are
(pages 20-21, t.s.n., hearing of 23 March 1966 )
fellow Visayans,[8] admitted their relationship or closeness
The records also show that although Dr. Tamesis operated on the left
to Precilla.[9] It was Precilla who instructed them to go to the house
eye of the decedent at the Lourdes Hospital on 8 August 1960; as of
of Gliceria del Rosario on 29 December 1960 to witness an important
23 August 1960, in spite of the glasses, her vision was only "counting
document,[10] and who took their residence certificates from them a
fingers"[17] at five feet. The cross-examination of the doctor further
few days before the will was signed.[11] Precilla had met the notary
elicited the following responses:
public and witnesses Rosales and Lopez at the door of the residence
of the old Woman; he ushered them to the room at the second floor "Q After she was discharged from the hospital you prescribed lenses
where the signing of the document took place;[12]then he fetched for her, or glasses?
witness Decena from the latter's haberdashery shop a few doors "A After her discharge from the hospital, she was coming to my
away and brought him to the house of the testatrix.[13] And when the clinic for further examination and then sometime later glasses were
will was actually executed, Precilla was present.[14] prescribed.
xxxxx xxxxx xxxxx xxxxx
The oppositors-appellants in the present case, however, challenging
"Q And the glasses prescribed by you enabled her to read, Doctor?
the correctness of the probate court's ruling, maintain that on 29
"A As far as my record is concerned, with the glasses for the left eye
December 1960 the eyesight of Gliceria del Rosario was so poor and
which I prescribed - the eye which l operated - she could see only
defective that she could not have read the provisions of the will,
forms but not read. That is on the left eye.
contrary to the testimonies of witnesses Decena, Lopez and Rosales.
" Q How about the right eye?
On this point, we find the declarations in court of Dr. Jesus "A The same, although the vision on the right eye is even better
V. Tamesis very material and illuminating. Said opthalmologist, than the left eye." (pages 34, 35, t.s.n., hearing of 23 March 1966).
whose expertise was admitted by both parties, testified, among other Then, confronted with a medical certificate (Exhibit H) issued by him
things, that when DoñaGliceria del Rosario saw him for consultation on 29 November 1965 certifying that Gliceria del Rosario was
on 11 March 1960 he found her left eye to have cataract (opaque provided with aphakic lenses and "had been under medical
lens),[15] and that it was "above normal in pressure", denoting a supervision up to 1963 with apparently good vision", the doctor had
possible glaucoma, a disease that leads to blindness.[16] As to the this to say:
condition of her right eye, Dr. Tamesis declared:
"Q When you said that she had apparently good vision you mean
Q But is there anything here in the entry appearing in the other that she was able to read?
documents Exhibits 3-B, 3-C and 3-D from which you could inform the "A No, not necessarily, only able to go around, take care of herself,
court as to the condition of the vision of the patient as to the right eye? and see. This I can tell you, this report was made on pure
"A Under date of August 30, 1960, is the record of refraction, that is recollections and I recall she was using her glasses although I recall
setting of glass by myself which showed that the right eye with my
SUCCESSION (Cases 24 September 2018) Page 25
also that we have to give her medicines to improve her vision, some final, disposition of one's wordly possessions should be embodied in
medicines to improve her identification some more. an informal and untidily written instrument; or that the glaring spelling
xxxxx xxxxx xxxxx xxxxx errors should have escaped her notice if she had actually retained the
"Q What about the vision in the right eye, was that corrected by the ability to read the purported will and had done so. The record is thus
glasses? convincing that the supposed testatrix could not have physically read
"A Yes, with the new prescription which I issued on 30 August or understood the alleged testament, Exhibit "D", and that its
1960. It is in the clinical record. admission to probate was erroneous and should be reversed.
"Q The vision in the right eye was corrected?
That Doña Gliceria should be able to greet her guests on her birthday,
"A Yes. That is the vision for distant objects." (pages 38, 39,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
40, t.s.n. , hearing of 23 March 1966).
execution of the testament, Exhibit "D", as appears from the
The foregoing testimony of the opthalmologist who treated the
photographs, Exhibits "E" to "E-13", in no way proves that she was
deceased and, therefore, has first hand knowledge of the actual
able to read a closely typed page, since the acts shown do not require
condition of her eyesight from August, 1960 up to 1963, fully establish
vision at close range. It must be remembered that with the natural
the fact that notwithstanding the operation and removal of the cataract
lenses removed, her eyes had lost the power of adjustment to near
in her left eye and her being fitted with aphakic lens (used by cataract
vision, the substituted glass lenses being rigid and uncontrollable by
patients), her vision remained mainly for viewing distant objects and
her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
not for reading print. Thus, the conclusion is inescapable that with the
indicative of ability to see at normal reading distances. Writing or
condition of her eyesight in August, 1960, and there is no evidence
signing of one's name, when sufficiently practiced, becomes
that it had improved by 29 December 1960, Gliceria del Rosario was
automatic, so that one only to have a rough indication of the place
incapable of reading, and could not have read the provisions of the
where the signature is to be affixed in order to be able to write
will supposedly signed by her on 29 December 1960. It is worth
it. Indeed, a close examination of the checks, amplified in the
noting that the instrumental witnesses stated that she read the
photograph, Exhibit ''C'' et seq., reinforces the contention
instrument "silently" (t.s.n., pages 164-165), which is a conclusion and
of oppositors that the alleged testatrix could not see at normal reading
not a fact.
distance: the signatures in the checks are written far above the printed
Against the background of defective eyesight of the alleged testatrix, base lines, and the names of the payees as well as the amounts
the appearance of the will, Exhibit "D", acquires striking written do not appear to be in the handwriting of the alleged testatrix,
significance. Upon its face, the testamentary provisions, the being in a much firmer arid more fluid hand than hers.
attestation clause and acknowledgment were crammed together into a
Thus, for all intents and purposes of the rules on probate, the
single sheet of paper, so much so that the words had to be written
deceased Gliceria del Rosario was, as appellant oppositors contend,
very close to the top, bottom and two sides of the paper; leaving no
not unlike a blind testator, and the due execution of her will would
margin whatsoever; the word "and" had to be written by the symbol
have required observance of the provisions of Article 808 of the Civil
"&", apparently to save on space. Plainly, the testament was not
Code.
prepared with any regard for the defective vision
of Doña Gliceria. Further, typographical errors like "HULINH" for "ART. 808. If the testator is blind, the will shall be read to him twice;
"HIRING" (last), "Alfonsa" for "Alfonso", "MERCRDRS" for once, by one of the subscribing witnesses, and again, by the notary
"MERCEDES", "instrumrntal" for "Instrumental", and "acknowIrdged" public before whom the will is acknowledged."
for "acknowledge", remained uncorrected, thereby indicating that the The rationale behind the requirement of reading the will to the testator
execution thereof must have been characterized by haste. It is if he is blind or incapable of reading the will himself (as when he is
difficult to understand that so important a document containing the illiterate),[18] is to make the provisions thereof known to him, so that he

SUCCESSION (Cases 24 September 2018) Page 26

may be able to object if they are not in accordance with his rule is that only where there is no special proceeding for the
wishes. That the aim of the law is to insure that the dispositions of the settlement of the estate of the deceased may the legal heirs
will are properly communicated to and understood by the commence an action arising out of a right belonging to their
handicapped testator, thus making them truly reflective of his desire, ancestor.[21]
is evidenced by the requirement that the will should be read to the
There is no doubt that to settle the question of the due execution and
latter, not only once but twice, by two different persons, and that the
validity of the deed of sale, an ordinary and separate action would
witnesses have to act within the range of his (the testator's) other
have to be instituted, the matter not falling within the competence of
senses.[19]
the probate court.[22] Considering the facts then before it, i.e., the
In connection with the will here in question, there is nothing in the alleged deed of sale having been executed by Gliceria del Rosario on
records to show that the above requisites have been complied 10 January 1961, when she was already practically blind; and that the
with. Clearly, as already stated, the 1960 will sought to be probated consideration of P30,000.00 seems to be unconscionably small for
suffers from infirmity' that affects its due execution. properties with a total assessed value of P334,050.00, there was
likelihood that a case for annulment might indeed be filed against the
We also find merit in the complaint of oppositors Lucio V. Garcia, et
estate or heirs of Alfonso Precilla. And the administratrix, being the
al., against the denial by the probate court of their petition for the
widow and heir of the alleged transferee, cannot be expected to sue
removal of Consuelo Gonzales Vda, de Precilla as
herself in an action to recover property that may turn out to belong to
special administratrix of the estate of the
the estate.22a Not only this, but the conduct of the
deceased Doña Gliceria (Petition, G. R. No. L-26615, Annex"B").
special administratrix in securing new copies of the owner's duplicates
The oppositors' petition was based allegedly on the existence in the of TCT Nos. 66201, 66202, and 66204, without the court's knowledge
special administratrix of en interest adverse to that of the estate. It or authority, and on the pretext that she needed them in the
was their contention that through fraud her husband had caused the preparation of the inventory of the estate, when she must have
deceased Gliceria del Rosario to execute a deed of sale, dated 10 already known by then that the properties covered therein were
January 1961, by virtue of which the latter purportedly conveyed unto already "conveyed" to her husband by the deceased, being the latter's
said Alfonso D, Precilla, married to Consuelo Gonzales y Narciso, the successor, and having the contract bind the land through issuance of
ownership of 3 parcels of land and the improvements thereon, new titles in her husband's name, cannot but expose her to the
assessed at P334.050.00, for the sum of P30,000.00. charge of unfitness or unsuitableness to discharge the trust, justifying
her removal from the administration of the estate.
In denying the petition, the probate court, in its order of 13 September
1966 (Annex "F", Petition) reasoned out that since the properties were With respect to the orders of the court a quo denying (1)
already sold they no longer form part of the estate. The conflict of the oppositors' motion to require the Hongkong and Shanghai Bank to
interest would not be between the estate and third parties, but among report all withdrawals made against the funds of the deceased after 2
the different claimants of said properties, in which case, according to September 1965 and (2) the motion for annotation of
the court, the participation of the special administratrix in the action for a lis pendens notice on TCT Nos. 81735, 81736 and 31737, the same
annulment that may be brought would not be necessary. are to be affirmed.
The error in this line of reasoning lies in the fact that what was being The probate court pointed out in its order of 22 October 1965 (Annex
questioned was precisely the validity of the conveyance or sale of the "H") that it could not have taken action on the complaint against the
properties. In short, if proper, the action for annulment would have to alleged withdrawals from the bank deposits of the deceased, because
be undertaken on behalf of the estate by the special administratrix, as of that time the court had not yet been apprised that such deposits
affecting as it does the property or rights of the deceased.[20]For the exist. Furthermore, as explained by the special administratrixin her

SUCCESSION (Cases 24 September 2018) Page 27

pleading of 30 October 1965, the withdrawals referred to by In the Matter of the Probate of the Last Will and Testament
the oppositors could be those covered by checks issued in the name of the Deceased Brigido Alvarado, CESAR ALVARADO,
of Gliceria del Rosario during her lifetime but cleared only after her petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding
death. That explanation, which not only appears plausible but has not Justice, HON. MA. ROSARIO QUETULIO LOSA and HON.
been rebutted by the petitioners-oppositors, negates any charge of LEONOR INES LUCIANO, Associate Justices, Intermediate
grave abuse in connection with the issuance of the order here in Appellate Court, First Division (Civil Cases), and BAYANI
question. MA. RINO, respondents.
On the matter of lis pendens (G. R. No, L-26864), the provisions of
the Rules of Court are clear: notice of the pendency of an action may BELLOSILLO, J.:
be recorded in the office of the register of deeds of the province in
which the property is situated, if the action affects the title or the right Before us is an appeal from the Decision dated 11 April 1986[1] of the
of possession of (such) real property",[23] In the case at bar, the First Civil Cases Division of the then Intermediate Appellate Court,
pending action which oppositors seek to annotate in the records of now Court of Appeals, which affirmed the Order dated 27 June
TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding 1983[2] of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
filed in this Court (G.R. No. L-26615). As previously discussed in this probate the last will and testament[3] with codicil[4] of the late Brigido
opinion, however, that case is concerned merely with the correctness Alvarado.
of the denial by the probate court of the motion for the removal of On 5 November 1977, the 79-year old Brigido Alvarado executed a
Consuelo Gonzales Vda. de Precilla as special adrministratrix of the notarial will entitled "Huling Habilin" wherein he disinherited an
estate of the late Gliceria del Rosario. In short, the issue in illegitimate son (petitioner) and expressly revoked a previously
controversy there is simply the fitness or unfitness of said executed holographic will at the time awaiting probate before Branch
special administratrix to continue holding the trust; it does not involve of the Regional Trial Court of Sta. Cruz, Laguna.
or affect at all the title to, or possession of, the properties covered by
said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of As testified to by the three instrumental witnesses, the notary public
such case (L-26615) is not en action that can properly be annotated in and by private respondent who were present at the execution, the
the record of the titles to the properties. testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged document,
FOR THE FOREGOING REASONS, the order of the court below read the same aloud in the presence of the testator, the three
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is instrumental witnesses and the notary public. The latter four followed
hereby reversed and set aside. The petition in G. R. No. L-26615 the reading with their own respective copies previously furnished
being meritorious, the appealed order is set aside and the court below them.
is ordered to remove the administratrix, Consuelo Gonzales Vda.
de Precilla, and appoint one of the heirs intestate of the Meanwhile, Brigido's holographic will was subsequently admitted to
deceased Doña Gliceria Avelino del Rosario, as special administrator probate on 9 December 1977. On the 29th day of the same month, a
for the purpose of instituting action on behalf of her estate to recover codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
the properties allegedly sold by her to the late Alfonso Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni
D. Precilla. And in Case G. R. No. L-26864 petition is dismissed. No Brigido Alvarado" was executed changing some dispositions in the
costs. notarial will to generate cash for the testator's eye operation. Brigido
was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will,
[ GR No. 74695, Sep 14, 1993 ] the testator did not personally read the final draft of the codicil.

SUCCESSION (Cases 24 September 2018) Page 28

Instead, it was private respondent who read it aloud in his presence codicil were executed? If so, was the double-reading requirement of
and in the presence of the three instrumental witnesses (same as those said article complied with?
of the notarial will) and the notary public who followed the reading
Regarding the first issue, there is no dispute on the following facts:
using their own copies.
Brigido Alvarado was not totally blind at the time the will and codicil
A petition for the probate of the notarial will and codicil was filed were executed. However, his vision on both eyes was only of "counting
upon the testator's death on 3 January 1979 by private respondent as fingers at three (3) feet" by reason of the glaucoma which he had been
executor with the Court of First Instance, now Regional Trial Court, of suffering from for several years and even prior to his first consultation
Siniloan, Laguna.[5]Petitioner, in turn, filed an Opposition on with an eye specialist on 14 December 1977.
the following grounds: that the will sought to be probated was not
The point of dispute is whether the foregoing circumstances would
executed and attested as required by law; that the testator was insane
qualify Brigido as a "blind" testator under Art. 808 which reads:
or otherwise mentally incapacitated to makea will at the time
of its execution due to senility and old age; that the will was executed "Art. 808. If the testator is blind, the will shall be read to him twice;
under duress, or influence of fear or threats; that it was procured by once, by one of the subscribing witnesses, and again, by the notary
undue and improper pressure and influence on the part of the public before whom the will is acknowledged."
beneficiary who stands to get the lion's share of the testator's estate; Petitioner contends that although his father was not totally blind
and lastly, that the signature of the testator was procured by fraud or when the will and codicil were executed, he can be so considered
trick. within the scope of the term as it is used in Art. 808. To support his
stand, petitioner presented before the trial court a medical certificate
When the oppositor (petitioner) failed to substantiate the
issued by Dr. Salvador R. Salceda, Director of the Institute of
grounds relied upon in the Opposition, a Probate Order was issued on
Opthalmology (Philippine Eye Research institute),[6] the
27 June 1983 from which an appeal was made to respondent court.
contents of which were interpreted in layman's terms by Dr. Ruperto
The main thrust of the appeal was that the deceased was blind within
Roasa, whose expertise was admitted by private respondent.[7] Dr.
the meaning of the law at the time his "Huling Habilin" and the codicil
Roasa explained that although the testator could visualize fingers at
attached thereto were executed; that since the reading required by Art.
three (3) feet, he could no longer read either printed or handwritten
808 of the Civil Code was admittedly not complied with, probate of
matters as of 14 December 1977, the day of his first consultation.[8]
the deceased's last will and codicil should have been denied.
On the other hand, the Court of Appeals, contrary to the medical
On 11 April 1986, the Court of Appeals rendered the decision under
testimony, held that the testator could still read on the day the will
review with the following findings: that Brigido Alvarado was not
and the codicil were executed but chose not to do so because of "poor
blind at the time his last will and codicil were executed; that assuming
eyesight."[9] Since the testator was still capable of reading at that time,
his blindness, the reading requirement of Art. 808 was substantially
the court a quo concluded that Art. 808 need not be complied with.
complied with when both documents were read aloud to the testator
with each of the three instrumental witnesses and the notary public We agree with petitioner in this respect.
following the reading with their respective copies of the instruments.
Regardless of respondent's staunch contention that the testator was
The appellate court then concluded that although Art. 808 was not
still capable of reading at the time his will and codicil were prepared,
followed to the letter, there was substantial compliance since its
the fact remains and this was testified to by his witnesses, that Brigido
purpose of making known to the testator the contents of the drafted
did not do so because of his "poor,"[10] "defective,"[11] or
will was served.
"blurred"[12] vision making it necessary for private respondent to do
The issues now before us can be stated thus: Was Brigido Alvarado the actual reading for him.
blind for purposes of Art. 808 at the time his "Huling Habilin" and its

SUCCESSION (Cases 24 September 2018) Page 29

The following pronouncement in Garcia vs. Vasquez[13] provides an Brigido, probate of the latter's will and codicil should have been
insight into the scope of the term "blindness" as used in Art. 808, to disallowed.
wit:
We sustain private respondent's stand and necessarily, the petition
"The rationale behind the requirement of reading the will to the must be denied.
testator if he is blind or incapable of reading the will himself (as when
This Court has held in a number of occasions that substantial
he is illiterate), is to make the provisions thereof known to him, so
compliance is acceptable where the purpose of the law has been
that he may be able to object if they are not in accordance with his
satisfied, the reason being that the solemnities surrounding the
wishes x x x x"
execution of wills are intended to protect the testator from all kinds of
Clear from the foregoing is that Art. 808 applies not only to blind
fraud and trickery but are never intended to be so rigid and inflexible
testators but also to those who, for one reason or another, are
as to destroy the testamentary privilege.[14]
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the In the case at bar, private respondent read the testator's will and
separate occasions of their execution due to his "poor," "defective," or codicil aloud in the presence of the testator, his three instrumental
"blurred" vision, there can be no other course for us but to conclude witnesses, and the notary public. Prior and subsequent thereto, the
that Brigido Alvarado comes within the scope of the term "blind" as it testator affirmed, upon being asked, that the contents read
is used in Art. 808. Unless the contents were read to him, he had no corresponded with his instructions. Only then did the signing and
way of ascertaining whether or not the lawyer who drafted the will and acknowledgement take place. There is no evidence, and petitioner
codicil did so conformably with his instructions. Hence, to consider does not so allege, that the contents of the will and codicil were
his will as validly executed and entitled to probate, it is essential that not sufficiently made known and communicated to the testator. On
we ascertain whether Art. 808 had been complied with. the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth
Article 808 requires that in case of testators like Brigido Alvarado, the
and authenticity of the contents of the draft. The uncontradicted
will shall be read twice; once, by one of the instrumental witnesses
testimony of Atty. Rino is that Brigido Alvarado already acknowledged
and, again, by the notary public before whom the will was
that the will was drafted in accordance with his expressed wishes even
acknowledged. The purpose is to make known to the incapacitated
prior to 5 November 1977 when Atty. Rino went to the
testator the contents of the document before signing and to give him
testator's residence precisely for the purpose of securing his
an opportunity to object if anything is contrary to his instructions.
conformity to the draft.[15]
That Art. 808 was not followed strictly is beyond cavil. Instead of the
Moreover, it was not only Atty. Rino who read the documents on 5
notary public and an instrumental witness, itwas the lawyer
November and 29 December 1977. The notary public and the three
(private respondent) who drafted the eight-paged will and the five-
instrumental witnesses likewise read the will and codicil, albeit
paged codicil who read thesame aloud to the testator, and read them
silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr.
only once, not twice as Art. 808 requires.
Crescente O. Evidente (one of the three instrumental witnesses and
Private respondent however insists that there was substantial the testator's physician) asked the testator whether the contents of the
compliance and that the single reading suffices for purposes of the documents were of his own free will. Brigido answered in the
law. On the other hand, petitioner maintains that the only valid affirmative.[16] With four persons following the reading word for word
compliance is a strict compliance or compliance to the letter and since with their own copies, it can be safely concluded that the testator was
it is admitted that neither the notary public nor an reasonably assured that what was read to him (those which he
instrumental witness read the contents of the will and codicil to affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is especially

SUCCESSION (Cases 24 September 2018) Page 30

true when we consider the fact that the three instrumental witnesses remained pending, this decision is immediately executory. Costs
were persons known to the testator, one being his physician (Dr. against petitioner.
Evidente) and another (Potenciano C. Ranieses) being known to him
SO ORDERED.
since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial DANILO ALUAD, LEONORA ALUAD, G.R. No. 176943
requirements of the law in order to insure the authenticity of the DIVINA ALUAD, PROSPERO ALUAD,
will, the formal imperfections should be brushed aside when they do and CONNIE ALUAD,
not affect its purpose and which, when taken into account, may only Petitioners, Promulgated:
defeat the testator's will.[17] October 17, 2008
- versus -
As a final word to convince petitioner of the propriety of the trial
court's Probate Order and its affirmance by the Court of ZENAIDO ALUAD,
Appeals, we quote the following pronouncement in Abangan v. Respondent.
Abangan,[18] to wit: x--------------------------------------------------
"The object of the solemnities surrounding the execution of wills is to x
close the door against bad faith and fraud, to avoid the substitution of
wills and testaments and to guaranty their truth and authenticity. DECISION
Therefore the laws on the subject should be interpreted in such a way
as to attain these primordial ends. But, on the other hand, also one CARPIO MORALES, J.:
must not lose sight of the fact that it is not the object of the law to Petitioners mother, Maria Aluad (Maria), and respondent
restrain and curtail the exercise of the right to make a will. So when an Zenaido Aluad were raised by the childless spouses Matilde Aluad
interpretation already given assures such ends, any other (Matilde) and Crispin Aluad (Crispin).
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's Crispin was the owner of six lots identified as Lot Nos. 674,
will, must be disregarded" (underscoring supplied). 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin
Brigido Alvarado had expressed his last wishes in clear and died, his wife Matilde adjudicated the lots to herself.[1]
unmistakable terms in his "Huling Habilin" and the codicil attached
thereto. We are unwilling to cast these aside for the mere reason that a
On November 14, 1981, Matilde executed a document entitled
legal requirement intended for his protection was not followed strictly
Deed of Donation of Real Property Inter Vivos[2] (Deed of Donation) in
when such compliance had been rendered unnecessary by the fact that
favor of petitioners mother Maria[3] covering all the six lots which
the purpose of the law, i.e., to make known to the incapacitated
Matilde inherited from her husband Crispin. The Deed of Donation
testator the contents of the draft of his will, had already been
provided:
accomplished. To reiterate, substantial compliance suffices where the
purpose has been served.
That, for and in consideration of the love and
WHEREFORE, the petition is DENIED and the assailed affection of the DONOR [Matilde] for the DONEE
Decision of respondent Court of Appeals dated 11 April 1986 [Maria], the latter being adopted and hav[ing] been
is AFFIRMED. Considering the length of time that this case has brought up by the former the DONOR, by these
presents, transfer and convey, BY WAY OF

SUCCESSION (Cases 24 September 2018) Page 31

 DONATION, unto the DONEE the property above-
described, to become effective upon the death of That after the death of Matilde R. Aluad, the
the DONOR, but in the event that the DONEE plaintiffs succeeded by inheritance by right of
should die before the DONOR, the present representation from their deceased mother, MariaAluad
donation shall be deemed rescinded and [of] no who is the sole and only daughter of Matilde Aluad[.][9]
further force and effect; Provided, however,
that anytime during the lifetime of the DONOR or
anyone of them who should survive, they could use[,] To the complaint respondent alleged in his Answer.[10]
encumber or even dispose of any or even all of the
parcels of land herein donated.[4] (Emphasis and That Lot 674 is owned by the defendant as this
underscoring supplied) lot was adjudicated to him in the Last Will and
Testament of Matilde Aluad x x x while Lot 676 was
purchased by him from Matilde Aluad. These two lots
On September 30, 1986, Original Certificates of Title over Lot are in his possession as true owners
Nos. 674 and 676 were issued in Matildes name. thereof.[11] (Underscoring supplied)

On August 26, 1991, Matilde sold Lot No. 676 to respondent by Petitioners later filed a Motion for Leave to Amend Complaint
a Deed of Absolute Sale of Real Property.[5] Already Filed to Conform to Evidence[12] to which it annexed an
Amended Complaint[13] which cited the donation of the six lots via
Subsequently or on January 14, 1992, Matilde executed a last Deed of Donation in favor of their mother Maria. Branch 15 of
will and testament,[6] devising Lot Nos. 675, 677, 682, and 680 to the RTCgranted the motion and admitted the Amended Complaint.[14]
Maria, and her remaining properties including Lot No. 674 to
respondent. Respondent filed an Amended Answer[15] contending, inter
alia, that the Deed of Donation is forged and falsified and petitioners
Matilde died on January 25, 1994, while Maria died on change of theory showed that said document was not existing at the
September 24 of the same year.[7] time they filed their complaint and was concocted by them after
realizing that their false claim that their mother was the only daughter
On August 21, 1995, Marias heirs-herein petitioners filed before of Matild[e] Aluad cannot in anyway be established by them;[16] and
the Regional Trial Court (RTC) of Roxas City a Complaint,[8] for that if ever said document does exist, the same was already revoked
declaration and recovery of ownership and possession of Lot by Matilde when [she] exercised all acts of dominion over said
Nos. 674 and 676, and damages against respondent, alleging: properties until she sold Lot 676 to defendant and until her death with
That in 1978, plaintiff[s] possessed the two (2) respect to the other lots without any opposition from Maria Aluad.[17]
parcels of land above-described until January 1991
when defendant entered and possessed the two (2) The trial court, by Decision[18] of September 20, 1996, held that
parcels of land claiming as the adopted son of Crispin Matilde could not have transmitted any right over Lot
Aluad who refused to give back possession until Nos. 674 and 676 to respondent, she having previously alienated them
Matilde Aluad died in [1994] and then retained the to Maria via the Deed of Donation. Thus it disposed:
possession thereof up to and until the present time,
thus, depriving the plaintiffs of the enjoyment of said WHEREFORE, in view of the foregoing,
parcels of land x x x; judgment is hereby rendered:
SUCCESSION (Cases 24 September 2018) Page 32
 By Decision[21] of August 10, 2006, the Court of Appeals
1. Declaring the plaintiffs as the rightful reversed the trial courts decision, it holding that the Deed of Donation
owners of the subject Lots Nos. 674 and was actually a donation mortis causa, not inter vivos, and as such it
676, Pilar Cadastre; had to, but did not, comply with the formalities of a will. Thus, it found
that the Deed of Donation was witnessed by only two witnesses and
2. Ordering the defendant to deliver the had no attestation clause which is not in accordance with Article 805
possession of the subject lots to the of the Civil Code, reading:
plaintiffs;
Art. 805. Every will, other than a holographic
3. Ordering the defendant to pay the will, must be subscribed at the end thereof by the
plaintiffs: testator himself or by the testators name written by
some other person in his presence, and by his express
a. Thirty thousand pesos (P30,000.00) direction, and attested and subscribed by three or more
as attorneys fees; credible witnesses in the presence of the testator and
of one another.
b. Twenty thousand pesos (P20,000.00),
representing the income from subject The testator or the person requested by him to
Lot 676, a year from 1991 up to the time write his name and the instrumental witnesses of the
said lot is delivered to the plaintiffs, will shall, also sign, as aforesaid, each and every page
together with the interest thereof at the thereof, except the last on the left margin and all the
legal rate until fully paid; pages shall be numbered correlatively in letters placed
on the upper part of each page.
c. Ten thousand pesos (P10,000.00),
representing the income from the The attestation shall state the number of pages
subject Lot No. 674, a year from 1991 used upon which the will is written, and the fact that
up to the time said lot is delivered to the that testator signed the will and every page thereof, or
plaintiffs, plus legal interest thereof at caused some other person to write his name, under his
the legal rate until fully paid; and express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
d. The costs of the suit. will and all the pages thereof in the presence of the
testator, and of one another.
Defendants counterclaim is ordered dismissed
for lack of merit. If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to them.
SO ORDERED.[19]
While the appellate court declared respondent as the rightful
owner of Lot No. 676, it did not so declare with respect to Lot No. 674,
On petitioners motion, the trial court directed the issuance of a as Matildes last will and testament had not yet been probated. Thus
writ of execution pending appeal.[20] Possession of the subject lots the Court of Appeals disposed:
appears to have in fact been taken by petitioners.
SUCCESSION (Cases 24 September 2018) Page 33
 WHEREFORE, finding the instant petition BUYER ON THE BASIS OF A DEED
worthy of merit, the same is hereby GRANTED and the OF SALE EXECUTED BY THE DONOR WHO HAD
Decision of the Regional Trial Court ofRoxas City, NO MORE RIGHT TO SELL THE SAME.
Branch 15, dated 20 September 1996, in Civil Case
No. V-6686 for declaration of ownership, recovery of III
ownership and possession, and damages
is REVERSED and SET ASIDE. X X X WHEN IT FAILED TO DECLARE PETITIONERS
THE RIGHTFUL OWNER OF LOT NO. 674 AFTER
A new one is entered in its stead declaring HAVING RULED WHEN IT HELD THAT
defendant-appellant as the lawful owner of Lot [No.] RESPONDENT CANNOT BE DECLARED OWNER
676 of the Pilar Cadastre. Accordingly, plaintiffs- THEREOF.
appellees are directed to return the possession of the
said lot to the defendant-appellant. IV

Moreover, plaintiffs-appellees are ordered to X X X WHEN IT HELD THAT THE ISSUANCE OF

pay P40,000.00 to defendant-appellant as attorneys A WRIT OF EXECUTION PENDING APPEAL IS IN
fees and litigation expenses. VIOLATION OF PARAGRAPH (a) SECTION 2, RULE
39, OF THE RULES OF COURT (AND ORDERING
Costs against plaintiffs-appellees. PETITIONERS TO RETURN POSSESSION OF LOT
676 TO RESPONDENT) AND ORDERING
SO ORDERED.[22] (Emphasis in the PETITIONERS TO PAY ATTORNEYS FEES AND
original; underscoring supplied) COST[S] OF SUIT.[26]

As did the appellate court, the Court finds the donation to

Their Motion for Reconsideration[23] having been petitioners mother one of mortis causa, it having the following
[24]
denied, petitioners filed the present Petition for characteristics:
Review,[25] contending that the Court of Appeals erred
(1) It conveys no title or ownership to the
I transferee before the death of the transferor; or
what amounts to the same thing, that the
X X X WHEN IT REVERSED THE DECISION OF THE transferor should retain the ownership (full or
COURT BELOW (RTC, Branch 15, Roxas City) naked) and control of the property while alive;
HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS MOTHER IS IN (2) That before the death of the transferor, the
FACT A DONATION MORTIS CAUSA. transfer should be revocable by the transferor at
will, ad nutum; but revocability may be provided
II for indirectly by means of a reserved power in the
donor to dispose of the properties conveyed; and
X X X WHEN IT RULED THAT RESPONDENT IS THE
RIGHTFUL OWNER OF LOT NO. 676 AS LOT
SUCCESSION (Cases 24 September 2018) Page 34
 (3) That the transfer should be void if the DONEE should die before the DONOR, the present
transferor should survive the donation shall be deemed rescinded and [of] no
transferee.[27] (Emphasis and underscoring further force and effect. When the donor provides
supplied) that should the DONEE xxx die before the DONOR,
the present donation shall be deemed rescinded
and [of] no further force and effect the logical
The phrase in the earlier-quoted Deed of Donation to become construction thereof is that after the execution of the
effective upon the death of the DONOR admits of no other subject donation, the same became effective
interpretation than to mean that Matilde did not intend to transfer the immediately and shall be deemed rescinded and [of]
ownership of the six lots to petitioners mother during her (Matildes) no further force and effect upon the arrival of a
lifetime.[28] resolutory term or period, i.e., the death of the
donee which shall occur before that of the
The statement in the Deed of Donation reading anytime donor. Understandably, the arrival of this resolutory
during the lifetime of the DONOR or anyone of them who should term or period cannot rescind and render of no
survive, they could use, encumber or even dispose of any or even further force and effect a donation which has never
all the parcels of land herein donated[29] means that Matilde retained become effective, because, certainly what donation
ownership of the lots and reserved in her the right to dispose them. For is there to be rescinded and rendered of no further
the right to dispose of a thing without other limitations than those force and effect upon the arrival of said resolutory
established by law is an attribute of ownership.[30] The phrase in the term or period if there was no donation which was
Deed of Donation or anyone of them who should survive is of course already effective at the time when the donee
out of sync. For the Deed of Donation clearly stated that it would take died?[32](Underscoring supplied)
effect upon the death of the donor, hence, said phrase could only have
referred to the donor Matilde. Petitioners themselves concede that
such phrase does not refer to the donee, thus: A similar ratio in a case had been brushed aside by this Court,
x x x [I]t is well to point out that the last however, thus:
provision (sentence) in the disputed paragraph should
only refer to Matilde Aluad, the donor, because she x x x [P]etitioners contend that the stipulation on
was the only surviving spouse at the time the donation rescission in case petitioners [donee] die ahead of
was executed on 14 November 1981, as her husband [donor] Cabatingan is a resolutory condition that
Crispin Aluad [] had long been dead as early as confirms the nature of the donation as inter vivos.
1975.[31]
Petitioners arguments are bereft of merit.[33]

The trial court, in holding that the donation was inter vivos, xxxx
reasoned:
x x x The herein subject deeds expressly
provide that the donation shall be rescinded in case
x x x The donation in question is subject to a [donees] the petitioners predecease [the donor]
resolutory term or period when the donor provides in Conchita Cabatingan. As stated in Reyes v.
the aforequoted provisions, but in the event that the Mosqueda, one of the decisive characteristics of a
SUCCESSION (Cases 24 September 2018) Page 35
 donation mortis causa is that the transfer should be apart from the disposition of the will. An unsigned
considered void if the donor should survive the attestation clause results in an unattested
donee. This is exactly what Cabatingan provided for in will. Even if the instrumental witnesses signed the left-
her donations. If she really intended that the donation hand margin of the page containing the unsigned
should take effect during her lifetime and that the attestation clause, such signatures cannot demonstrate
ownership of the properties donated to the donee or these witnesses undertakings in the clause, since the
independently of, and not by reason of her death, she signatures that do appear on the page were directed
would not have expressed such proviso in the subject towards a wholly different avowal.
deeds.[34] (Underscoring supplied) x x x It is the witnesses, and not the
testator, who are required under Article 805 to state the
number of pages used upon which the will is written;
As the Court of Appeals observed, x x x [t]hat the donation the fact that the testator had signed the will and every
is mortis causa is fortified by Matildes acts of possession as she page thereof; and that they witnessed and signed the
continued to pay the taxes for the said properties which remained will and all the pages thereof in the presence of the
under her name; appropriated the produce; and applied for free testator and of one another. The only proof in the will
patents for which OCTs were issued under her name.[35] that the witnesses have stated these elemental facts
would be their signatures on the attestation
The donation being then mortis causa, the formalities of a will clause.[39] (Emphasis and underscoring supplied)
should have been observed[36] but they were not, as it was witnessed
by only two, not three or more witnesses following Article 805 of the
Civil Code.[37] Furthermore, the witnesses did not acknowledge the will
before the notary public,[40] which is not in accordance with the
Further, the witnesses did not even sign the attestation requirement of Article 806 of the Civil Code that every will must be
clause[38] the execution of which clause is a requirement separate from acknowledged before a notary public by the testator and the
the subscription of the will and the affixing of signatures on the left- witnesses.
hand margins of the pages of the will. So the Court has emphasized:
More. The requirement that all the pages of the will must be
x x x Article 805 particularly segregates the numbered correlatively in letters placed on the upper part of each
requirement that the instrumental witnesses sign each page was not also followed.[41]
page of the will from the requisite that the will be
attested and subscribed by [the instrumental The Deed of Donation which is, as already discussed, one
witnesses]. The respective intents behind these two of mortis causa, not having followed the formalities of a will, it is void
classes of signature[s] are distinct from each and transmitted no right to petitioners mother. But even
other. The signatures on the left-hand corner of every assuming arguendo that the formalities were observed, since it was
page signify, among others, that the witnesses are not probated, no right to Lot Nos. 674 and 676 was transmitted to
aware that the page they are signing forms part of the Maria.[42] Matilde thus validly disposed of Lot No. 674 to respondent
will. On the other hand, the signatures to the attestation by her last will and testament, subject of course to the qualification
clause establish that the witnesses are referring to the that her (Matildes) will must be probated. With respect to Lot No. 676,
statements contained in the attestation clause the same had, as mentioned earlier, been sold by Matilde to
itself. Indeed, the attestation clause is separate and respondent on August 26, 1991.
SUCCESSION (Cases 24 September 2018) Page 36
 Petitioners nevertheless argue that assuming that the donation
of Lot No. 674 in favor of their mother is indeed mortis causa, hence,
Matilde could devise it to respondent, the lot should nevertheless
have been awarded to them because they had acquired it by
acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith
and in the concept of an owner since 1978.[43]

Petitioners failed to raise the issue of acquisitive prescription

before the lower courts, however, they having laid their claim on the
basis of inheritance from their mother. As a general rule, points of law,
theories, and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal.[44] For a contrary rule
would be unfair to the adverse party who would have no opportunity to
present further evidence material to the new theory, which it could
have done had it been aware of it at the time of the hearing before the
trial court.[45]

WHEREFORE, the petition is DENIED.

SO ORDERED.

SUCCESSION (Cases 24 September 2018) Page 37