Taboada vs Rosal,
G.R. No. L-36033,
November 5, 1982
FACTS:
Taboada filed in a petition for probate, the last will and testament of Perez, in the
CFI of Maasin. The will consists of two pages and was written in Cebuano-Visayan
dialect.
The first page, contains the testamentary provisions and is signed at the end or
bottom of the page by the testatrix and at the left hand margin by the three witness.
The second page which contains the attestation clause and acknowledgment is
signed at the end of the attestation clause by the three attesting witness and the left
hand margin by the testatrix.
The CFI denied the probate of the will for want of formality of execution.
Taboada was ordered to submit the names of the intestate heirs so they could be
notified in the settlement of the case.
Petitioner filed a motion for reconsideration, and thereafter an appointment of
special administrator. The CFI judge denied both of the application.
PETITIONER’s CONTENTIONS:
Article 805 of the Civil Code does not make it a condition precedent or a matter
of absolute necessity for the extrinsic validity of the will that the signatures of the
subscribing witnesses should be specifically located at the end of the will after the
signature of the testatrix.
It would be absurd that the legislature intended to place so heavy an import on
the space or particular location where the signatures are to be found as long as this
space or particular location wherein the signatures are found is consistent with good
faith and the honest frailties of human nature.
RESPONDENT’s CONTENTIONS:
The law requires that, for a notarial will to be valid, it is not enough that only the
testatrix signs at the "end" but all the three subscribing witnesses must also sign at the
same place or at the end, in the presence of the testatrix and of one another because the
attesting witnesses to a will attest not merely the will itself but also the signature of the
testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
ISSUE:
Whether or not the CFI judge erred in denying the will for probate.
RULING:
YES. Article 805 of the Civil Code contemplates that, the will must be subscribed
or signed at its end by the testator himself or by the testator's name written by another
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
Attestation and Subscription
Attestation consists in witnessing the testator's execution of the will in order to
see and take note mentally that those things are done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact.
Subscription is the signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was executed by the testator.
Purpose of Attestation Clause
Attestation clause shall state the number of pages or sheets upon which the will
is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed.
In the present case, the will in this case properly followed the requirement of the
law, and satisfied the purpose of identification. The signatures of the instrumental
witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the sole page
which contains all the testamentary dispositions, especially so when the will was
properly identified by subscribing witness Vicente Timkang to be the same will
executed by the testatrix. There was no question of fraud or substitution behind the
questioned order.
Liberal Construction
The underlying and fundamental objective permeating the provisions on the law
on wills in this project consists in the liberalization of the manner of their execution
with the end in view of giving the testator more freedom in expressing his last wishes
but with sufficient safeguards and restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect to the formalities in the
execution of a will.
The will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it
not for the fact that, in this case, it is discernible from the entire will that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental
witnesses.
As earlier stated, the first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause
and the acknowledgment. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page."
