[ G.R. No.

 13431, November 12, 1919 ]

IN RE WILL OF ANA ABANGAN. GERTRUDIS ABANGAN, EXECUTRIX
AND APPELLEE, VS. ANASTACIA ABANGAN ET AL., OPPONENTS AND
APPELLANTS.

DECISION

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponents appealed.

Said document, duly probated as Ana Abangan's will, i' consists of two sheets, the first of
which contains all of the disposition of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the testatrix) and by three witnesses.
The following sheet contains only the attestation clause duly signed at the bottom by the
three instrumental witnesses. Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters; and these omissions, according
to appellants' contention, are defects whereby the probate of the will should have been
denied. We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin
by the testator and three witnesses in the presence of each other, Act No. 2645 (which is
the one applicable in the case) evidently has for its object (referring to the body of the
will itself) to avoid the substitution of any of said sheets, thereby changing the testator's
dispositions. ^ But when these dispositions are wholly written on only one sheet signed at
the bottom by the testator and three witnesses (as the instant case), their signatures on the
left margin of said sheet would be completely purposeless. In requiring this signature on
the margin, the statute took into consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the testator and the witnesses
do not have to sign at the bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute
to the statute such an intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at the bottom of
the sheet guaranties its authenticity, another signature on its left margin would be
unnecessary; and if they d.o not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the statute regards of such
importance the place where the testator and the witnesses must sign on the sheet that it
would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is
to know whether any sheet of the will has been removed. But, when all the dispositive
parts of a will! are written x>n one sheet only, the object of the statute disappears because
the removal of this single sheet, although Unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in the
one accompanying the will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet are fprmalities not
required by the statute. Moreover, referring specially to the signature of the testatrix, we
can add that same is not necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the testator since the latter does not
attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation clause and is signed also at
the bottom by the three witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their "truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded.

As another ground for this appeal, it is alleged the records do not show that the testatrix
knew the dialect in which the will is written. But the circumstance appearing in the will
itself that same was executed in the city of Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with
costs against the appellants. So ordered.

[ G.R. No. 28946, January 16, 1929 ]

IN RE ESTATE OF PIRASO, DECEASED. SIXTO ACOP, PETITIONER AND
APPELLANT, VS. SALMING PIRASO ET AL., OPPONENTS AND
APPELLEES.

DECISION

ROMUALDEZ, J.:

This appeal was taken from the judgment of the Court of First Instance of Benguet,
denying the probate of the instrument Exhibit A, as the last will and testament of the
deceased Piraso.

The proponent-appellant assigns the following as alleged errors of the lower court:

"1. In holding that in order to be valid the will in question should have been drawn up in
thei Ilocano dialect.

"2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to
understand a will drawn up in said dialect.

"3. In refusing to admit the will in question to probate."

The fundamental errors assigned refer chiefly to the part of the judgment Which reads as
follows:

"The evidence shows that Piraso knew how to speak the Ilocano dialect, although
imperfectly, and could make himself understood in that dialect, and the court is of the
opinion that his will should have been written in that dialect."

Such statements were unnecessary for the decision of the case, once it has been proved
without contradiction, that the said deceased Piraso did not know English, in which
language the instrument Exhibit A, alleged to be his will, is drawn. Section 618 of the
Code of Civil Procedure, strictly provides that:

"No will, except as provided in the preceding section" (as to wills executed by a Spaniard
or a resident of the Philippine Islands, before the present Code of Civil Procedure went
into effect), "shall be valid to pass any estate, real or personal, nor charge or affect the
same, unless it be written in the language or dialect known by the testator,'' etc.
(Parenthesis and italics ours.) Nor can the presumption in favor of a will established by
this court in Abangan vs. Abangan (40 Phil., 476), to the effect that the testator is
presumed to know the dialect of the locality where he resides, unless there is proof to the
contrary, even be invoked in support of the probate of said document Exhibit A, as a will,
because, in the instant case, not only is it not proven that English is the language of the
City of Baguio where the deceasied Piraso lived and where Exhibit A was drawn, but that
the record contains positive proof that said Piraso knew no other language than the
Igorrote dialect, with a smattering of Ilocano; that is, he did not know the English
language in which Exhibit A is written. So that even if such a presumption could have
been raised in this case it would have been wholly contradicted and destroyed.

We consider the other questions raised in this appeal needless and immaterial to the
adjudication of this case, it having been, as it was, proven, that the instrument in question
could not be probated as the last will and testament of the deceased Piraso, having been
written in the English language with which the latter was unacquainted.

Such a result based upon solidly established facts would be the same whether or not it be
technically held that said will, in order to be valid, must be written in the Ilocano dialect;
whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a
means of communication in writing, and whether or not the testator Piraso knew the
Ilocano dialect well enough to understand a will written in said dialect. The fact is, we
repeat, that it is quite certain that the instrument Exhibit A was written in English, which
the supposed testator Piraso did not know, and this is sufficient to invalidate said will
according to the clear and positive provisions of the law, and inevitably prevents its
probate.

The judgment appealed from is affirmed, with the costs of this instance against the
appellant. So ordered.

[ G.R. No. L-2862, April 21, 1952 ]

TESTATE ESTATE OF MARIA ZUÑIGA VDA. DE PANDO, DECEASED.
JUAN REYES, PETITIONER AND ADMINISTRATOR AND APPELLANT,
VS. DOLORES ZUÑIGA VDA. DE VIDAL, OPPOSITOR AND APPELLEE.

DECISION

BAUTISTA ANGELO, J.:

This concerns the admission to probate of a document claimed to be the last will and
testament of Maria Zuñiga Vda. de Pando who died in the City of Manila on October 29,
1945.

On November 6, 1945, a petition for the probate of said will was filed in the Court of
First Instance of Manila.  On December 21, 1945, Dolores Zuñiga Vda. de Vidal, sister of
the deceased, filed an opposition based on several grounds.  And, after several days of
trial, at whieh both parties presented their respective evidence, the court rendered its
decision disallowing the will on the ground that the signatures of the deceased appearing
therein are not genuine, that it was not proven that the deceased knew the Spanish
language in which it was written, and that even if the signatures are genuine, the same
reveal that the deceased was not of sound mind when she signed the will.  From this
decision petitioner appealed to this Court.

While petitioner imputes nine errors to the lower court, we believe, however, that for
purposes of this appeal a discussion of some would be sufficient. That, the issues may be
boiled down as follows: 1) Whether or not the signatures of the deceased appearing in the
will (Exhibit "C") are genuine; 2) whether or not there is evidence to show that the
testatrix knew the language in which the will was written; and 3) whether or not the
testatrix was of sound and disposing mind when she signed the will.

1. To prove that the will was signed by the testatrix in accordance with law, petitioner
presented as witnesses the three persons who attested to the execution of the will. These
witnesses are: Cornelia Gonzales de Romero, Quintin Ulpindo and Consuelo B. de
Catindig.  The first used to provide the deceased with ice every day, and in one of those
occasions she went to her house to bring ice, she was requested to act as witness to the
execution of the will.  The second was a laborer whose job was to fix bed made of rattan,
and in one of those days he went to the house of the deceased to work, he was asked also
to witness the signing of the will.  And the third was a neighbor of the deceased for Many
years who was also requested to act as an instrumental witness.  These witnesses testified
in their own simple and natural way that the deceased signed the will seated on her bed
but over a small table placed near the bed in their presence, and after she had signed it in
the places where her signatures appear, they in turn signed said will in her presence and
in the presence of each other.  This is the substance of what they have testified and from
an examination of their testimony the court entertains no doubt that they bad told the
truth. There is nothing in their testimony which may in any way reflect against their
credibility nor has the oppositor proven any fact or circumstance which say give rise to
the suspicion that they testified out of personal interest or pecuniary consideration. They
have impressed the court as simple persons who had intervened in the execution of the
will out merely of deferenoe to the testatrix whom they had served for sometime and had
known to be a good and respectable woman.

What evidence has the oppositor presented to contradict the testimony of these
instrumental witnesses? Only one expert witness, Jose G. Villanueva, who made a
comparative analysis of the signatures appearing in the will in relation to some genuine
signatures of the deceased, and in fact testified on the analysis and study he has made of
said signatures and submitted a memorandum on the study and comparison he has made.
And in his testimony as well as in his memorandum, this witness has reached the
conclusion that the hand that wrote the signatures of the deceased appearing in the will is
not the same hand that wrote the genuine signatures he had examined and which he used
as basis of his analytical study, thereby concluding that said signatures are not genuine.
The lower oourt gave full faith and credit to the opinion of this expert witness, and
decreed as a result that the will cannot be admitted to probate.

There are, however, certain important facts and circumstances which make us differ from
this opinion of the lower court. In the first place, we find that the opinion of this expert
witness has been rebutted by another expert witness, Jose C. Espinosa, whose opinion, to
our mind, deserves more weight and credence. And our reason for reaching this
osaelasion is the faet that the standards of comparison used by Espinosa are mere reliable
than those used by Villanueva.  Thus, the standards osed by Villanueva in the comparison
are two signatures appearing in two documents executed on November 10, 1942, one
signature in an identification card affixed in April 1940, a half signature appearing in a
letter written on October 8, 1943, one signature appearing in a letter written on July 16,
1945, and one signature appearing in a letter written in January, 1945, whereas the
disputed signatures appearing in the will were affixed on October 29, 1945.   On the other
hand, the standards used by Espinosa in making his comparative study bear dates much
closer to that of the disputed signatures.  Thus, he examined four genuine signatures that
were affixed on October 16, 1945, other four signatures affixed in October 1945, one on
January 2, 1945, one on January 24, 1945, and one on September 24, 1945. He also
examined one affixed on March 12, 1941, only for emphasis. The closeness or proximity
of the time in which the standards used had been written to that of the suspected signature
or document is very important to bring about an accurate analysis and conclusion. The
selection of the proper standards of comparison is of paramount importance specially if
we consider the age and state of health of the author of the questioned signatures. A
signature affixed in 1941 may involve characteristics different from those borne by a
signature affixed in 1945. And this is because the passing of time and the increase in age
may have a decisive influence in the writing characteristics of a person. It is for these
reasons that the authorities are of the opinion that in order to bring about an accurate
comparison and analysis, the standards of comparison must be as close as possible in
point of time to the suspected signature. Such was not followed in the study made by
Villanueva.  But such was observed in the study made by Espinosa.  He followed the
standard practice in handwriting analysis.  It is for this reason that we hold that Espinosa's
opinion deserves more weight and consideration.
"The standards should, if possible, have been made at the sane time as the suspected
document.  It is preferable that the standards embrace the time of the origin of the
document, so that one part comes from the time before the origin, and one part from the
time after the origin. (Page 423 'Modern Criminal Investigation' by Soderman and
O'Connell, 1936, Funk and Wagnalls Company, New York and London.)

"If possible not less than five or six signatures should always be examined and preferably
double that number." (Page 139, Forensic Chemistry and Scientific Criminal
Investigation by Lucas, 1935, Edward Arnold & Co., London.)
2. Another ground on which the lower court based the disallowance of the will is the
failure of the petitioner to prove that the testatrix knew and spoke the language in which
the will in question appears to have been written.  According to the lower court,  the law
requires that the will should be written in the dialect or language Known to the testator
and this fact not having been proven, the probate of the will must fail.  And so the will
was disallowed.

There is indeed nothing in the testimony of the witnesses presented by the petitioner
which would indicate that the testatrix knew and spoke the Spanish language used in the
preparation of the will in question.  But, in our opinion, this failure alonecdees not in
itself suffice to conclude that this important requirement of the law has not been complied
with, it appearing that there is enough evidence on record which supplies this technical
omission.  In the first place, we have the an disputed fact that the deceased was a mestiza
española, was carried to a Spaniard, Recaredo Pando, and made several trips to Spain. In
the second place, we have the very letters submitted as evidence by the oppositer written
in Spanish by the deceased in her own handwriting (Exhibits 1, 2, 5 and 4).   Having
proven by her very own evidence that the deceased possessed the Spanish language,
oppositor oannot now be allowed to allege the contrary.  These facts give rise to the
presumption that the testator knew the language in which the testament has been written,
which presumption should stand unless the contrary is proven (Abangan vs. Abangan, 40
Phil., 476; Gonzales vs. Laurel, 46 Phil. 750).  And this presumption has not been
overcome.  And finally, we have the very attestation clause of the will which states that
the testatrix knew and possessed the Spanish language.  It is true that this matter is not
required to be stated in the attestation clause, but its inclusion can only mean that the
instrumental witnesses wanted to make it of record that the deceased knew the language
in which the will was written.  There is, therefore, no valid reason why the will should be
avoided on this ground.

3. The remaining ground which the lower court has considered in disallowing the will is
the faot that the deceased was not of sound and disposing mind when she signed the will,
and it reached this conclusion, not because of any direct evidence on the matter, but
simply because the deceased signed the will in a somewhat varied form.  On this point
the lower court said:
"El Juzgado es de opinion que aunque se adult a que las firmas arriba indicadas fueran de
Maria Zuñiga Vda. de Pando, las misma revelan que ella no estaba en el pleno goce de
sus facultades mentales cuando la hicieron firmar el documento, Exhibit C, pues el hecho
de que en una sola ocasion la repetida Maria Zuñiga Vda. de Pando firmo dos veces, sin
escribir su verdadero nombre, demuestra que ella no se daba cuenta de sus actos por no
hallarse mentalmente sana.  Si esto es asi, no se debe legalizar como testamento y ultima
voluntad de la finada Maria Zuñiga Vda. de Pando el documento, Exhibit C, porque el
Articulo 614 de la Ley 190 y el Articulo 12, Reglamentos de los Tribunales, disponen
que solamente pueden otorgar testamento las personas que al tiempo de su otorgamiento
estaban en el pleno goce de sus facultades mentales."
The above conclusion is contrary to what the instrumental witnesses have said on this
point.  Cornelia Gonzales de Romero stated that she spoke to the deeeased before the
signing of the will, and judging frcm the way she spoke she was of the impression that
the deceased was of sound mind at the time. To the same effect is the testimony of
Consuelo B. de Catindig.   She said that her impression when the deeeased signed the will
was that she could still talk and read, only that she was weak.  In fact she read the will
before signing it.  These statements had not been contradicted.  They give an idea of the
mental condition of the deceased while the signatures affixed by the deeeased in the will
differ from each other in certain respects, this is only due to her age and state of health
rather than to a defective mental condition.  They do not reveal a condition of forgery or
lack of genuineness.  These differences or irregularities are common in the writings of
old people and, far from showing lack of genuineness, are indicative of the age, sickness,
or weak condition of the writer.  A comparison of the three disputed signatures in the will
will readily give this impression.
"Abbreviated, distorted and illegible, forms, Which are sufficiently free and rapid, often
actually indicate genuineness rather than forgery even though they are very unusual and
not exactly like those in the standard writing. Those who write with difficulty or
hesitation through some physical infirmity may sometimes produce broken and
unfinished signatures and these results, which in themselves are distinctly divergent as
compared with signatures produced under conditions of strength and health, may
forcefully indicate genuineness.  Under conditions of weakness due to disease or age,
parts of a genuine signature may be clumsily written over a second time not at just the
same place and in a way which clearly shows that the writer either could not see or was
so weak and inattentive as not to care what tfre result might be.  This careless, perfectly
evident repetition (figure 184), unlike the painstaking and delicate retouching of the
forger, often indicates genuineness." (Page 365, Questioned Documents by Osborne, 2nd
Edition, 1927.)
We are, therefore, of the opinion that the lower court erred in disallowing the will Exhibit
C.

Wherefore, the decision appealed from is hereby reversed. The Court admits the will,
Exhibit C to probate, and remands this case to the lower court for further proceedings,
with costs against the appellee.

[ G.R. No. L-13781, January 30, 1960 ]

TESTATE ESTATE OF JOSE J. JAVELLANA, DECEASED. CRISTETA
JIMENEA VDA. DE JAVELLANA, AND BENJAMIN JAVELLANA,
PETITIONERS AND APPELLEES, VS. JOSE JAVELLANA Y AZAOLA AND
JOSE JAVELLANA, JR., OPPOSITORS AND APPELLANTS.

DECISION
BARRERA, J.:

On June 29, 1957, a petition to probate the alleged last will and testament of Jose J.
Javellana, who died on May 24 of the same year, was presented in the Court of First
Instance of Rizal by Cristeta Jimenea Vda. de Javellana and Benjamin Javellana, widow
and brother respectively of the deceased, alleging that the aforesaid Jose J. Javellana, at
the time of his death, a resident of San Juan, Rizal, left properties with an approximate
value of P400,000.00 ; that he also left a will which was delivered to the clerk of court
pursuant to the Rules of Court; that Oscar Ledesma, therein named executor, had agreed
to act as such; that the decedent's next of kin were: the widow, Cristeta J. Vda. de
Javellana, his children—Erlinda Javellana, Jose Javellana y Azaola, and Jose Javellana,
Jr. (Pepito), his sister Juanita J. de Ledesma, and brother Benjamin Javellana, whose
respective addresses were given in the petition.

To this petition, Jose Javellana y Azaola and Jose Javellana, Jr. (Pepito) filed separate
oppositions, both claiming that the alleged will of Jose J. Javellana deposited by
petitioners with the clerk of court was null and void, the same not having been executed
"in accordance with the formalities required by law" and that "the legal requirements
necessary for its validity" had not been complied with.

At the hearing, petitioners introduced as evidence in support of the petition, a copy of the
will; certification of the date and cause of death of the testator; proof of publication of the
petition, once a week for 3 consecutive weeks, in a newspaper of general circulation, and
the testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the 3
instrumental witnesses to the will, who, in substance, testified that sometime in April,
1956i they were asked to witness the execution of the will of the late Jose J. Javellana;
that on the said occasion, Jose J. Javellana signed the 4 pages of the will in their presence,
and they, in turn, also signed each and every page thereof in the presence of the testator
and of one another; and that these acts were acknowledged before notary public Fernando
Grey, Jr. on the same occasion.

For their part, the oppositors limited their evidence to the presentation of two letters in
the Visayan dialect allegedly written by the deceased, the signatures appearing thereon
being identified by Jose Javellana, Jr. (Pepito) and Manuel Azaola, as those of the
deceased, for the sole purpose of comparing said signatures with those appearing in the
will.

On December 10, 1957, the court a quo issued an order allowing the probate of the win
and directing the issuance of letters testamentary to Oscar Ledesma as executor thereof,
upon the latter's filing a bond in the sum of IM.0,000.00. From this order, oppositors
appealed to this Court charging the lower court of committing error in allowing probate
of the will, Exhibit C, on 2 grounds: (1) that the 3 attesting witnesses failed to clearly and
convincingly establish the due execution of the will; and (2) that petitioners failed to
prove that the will was written in a language known to the testator.

The first basis of oppositors' appeal has no merit. It is true that the witnesses, particularly
Miss Eloisa Villanueva, apparently found difficulty recalling who arrived first at the
appointed place, or the order of the witnesses' signing the will, or failed to mention by
name the persons present at the time one of the witnesses was signing the document.
These details, however, are minor and insignificant and do not enervate their positive
testimony that at the execution of the will, the testator, the 3 witnesses, the notary public
and Atty. Vicente Hilado were all together in the private office of the latter; that Jose
Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental witnesses, were
unanimous in declaring that they actually saw the testator sign the will as well as each
and every page thereof, and they, in turn, affixed their signatures to all of its 4 pages. For
the purpose of determining the due execution of a will, it is not necessary that the
instrumental witnesses should give an accurate and detailed account of the proceeding,
such as recalling the order of the signing of the document by the said witnesses. It is
sufficient that they have seen or at least were so situated at the moment that they could
have seen each other sign, had they wanted to do so.[1] In fact, in the instant case, at least
two witnesses, Yulo and Guevarra, both testified that the testator and the 3 witnesses
signed in the presence of each and every one of them.

With respect to the second ground, there is some merit in appellant's contention that the
language requirement of the law on wills has not been satisfactorily complied with in this
case. Admittedly, there is want of expression in the body of the will itself or in its
attestation clause that the testator knew Spanish, the language in which it is written. It is
true that there is no statutory provision requiring this and that proof thereof may be
established by evidence aliunde.[2] But here, there is absolutely no such evidence
presented by the petitioners-appellees. Not even the petition for probate contains any
allegation to this effect. No reference to it whatsoever is made in the appealed order.

In some cases, it is true, this lack of evidence was considered cured by presumption of
knowledge of the language or dialect used in the will, as where the will is executed in a
certain province or locality, in the dialect currently used in such province or locality in
which the testator is a native or resident, the presumption arises that the testator knew the
dialect so used, in the absence of evidence to the contrary; [3] or where the will is in
Spanish, the fact that the testatrix was a "mestiza española", was married to a Spaniard,
made several trips to Spain, and some of her letters in her own handwriting submitted as
evidence by the oppositor, are in Spanish, give rise to the presumption that she knew the
language in which the will was written, in the absence of proof to the contrary.[4]

In the case before us, no such or similar circumstances exist. On the contrary, there is
evidence that the testator is a Visayan although residing in San Juan, Rizal at the time of
his death. The will was executed in the City of Manila. Undoubtedly, it cannot be said,
and there is no evidence, that Spanish is the language currently used either in San Juan,
Rizal, or Manila. It follows, therefore, that no presumption can arise that the testator
knew the Spanish Language.

But petitioner-appellees insist in their brief that the burden is on the oppositors to allege
and prove that the testator did not know the Spanish language in the face of the legal
presumptions that "the law has been obeyed", "that a will executed in the Philippines
must be presumed to have been executed in conformity with the laws of the Philippines".
[5]
 and "that things have happened in accordance with the ordinary course of nature and
the ordinary habits of life", concluding that it would certainly be contrary to, the ordinary
habits of life for a person to execute his will in a language unknown to him. This, we
believe, is, to use a colloquial term, begging the question. If the argument of counsel is
correct, then every unopposed will may be probated upon its mere presentation in court,
without need of producing evidence regarding its execution. Counsel's statement is its
own refutation.

We find, however, in the record some indicia, although insufficient to give rise to the
presumption, that the testator might, in fact, have known the Spanish language. In
oppositors' own Exhibit 3 (a letter admittedly written by the testator) appear the salutation
"Querido Primo" and the complimentary ending "Su primo" which are Spanish terms.
Having found that all the formal requisites for the validity of the will have been
satisfactorily established, except the language requirement, we deem it in the interest of
justice to afford the parties an opportunity to present evidence, if they so desire, on this
controverted issue.

Wherefore, let the records of this case be remanded to the court of origin for further
proceedings as above indicated, without costs. It is so ordered.

[ G.R. No. 6285, February 15, 1912 ]

PEDRO BARUT, PETITIONER AND APPELLANT, VS. FAUSTINO
CABACUNGAN ET AL., OPPONENTS AND APPELLEES.

DECISION

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and
another, No. 6284,[1] just decided by this court, wherein there was an application for the
probate of an alleged last will and testament of the same person the probate of whose will
is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will
and testament of Maria Salomon, deceased. It is alleged in the petition for probate that
Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos
Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan,
Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been
witnesses to the execution thereof. By the terms of said will Pedro Barut received the
larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its
translation into Spanish appears at page 11. After disposing of her property the testatrix
revoked all former wills by her made. She also stated in said will that being unable to
read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda
and that she had instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. The will referred to as being a later will is the one involved in case No. 6284
already referred to. Proceedings for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by the court in both cases
for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to
probate upon the sole ground that the handwriting of the person who it is alleged signed
the name of the testatrix to the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will than that of the person whose
handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all
the witnesses to the will that the signature of the testatrix was written by Severo Agayan
at her request and in her presence and in the presence of all of the witnesses to the will. It
is immaterial who writes the name of the testatrix provided it is written at her request and
in her presence and in the presence of all the witnesses to the execution of the will.

The court seems, by inference at least, to have had in mind that under the law relating to
the execution of a will it is necessary that the person who signs the name of the testatrix
must afterwards sign his own name; and that, in view of the fact that, in the case at bar,
the name signed below that of the testatrix as the person who signed her name, being,
from its appearance, not the same handwriting as that constituting the name of the
testatrix, the will is accordingly invalid, such fact indicating that the person who signed
the name of the testatrix failed to sign his own. We do not believe that this contention can
be sustained. Section 618 of the Code of Civil Procedure reads as follows:
"No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other 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 each other. * * *"

This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name. The
remainder of the section reads:

"The attestation shall state the fact that the testator signed the will, or caused it to be
signed by some other person, at his express direction, in the presence of three witnesses,
and that they attested and subscribed it in his presence and in the presence of each other.
But the absence of such form of attestation shall not render the will invalid if it is proven
that the will was in fact signed and attested as in this section provided."

From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the testatrix was signed at
her express direction in the presence of three witnesses and that they attested and
subscribed it in her presence and in the presence of each other. That is all the statute
requires. It may be wise as a practical matter that the one who signs the testator's name
signs also his own; but that is not essential to the validity of the will. Whether one person
or another signed the name of the testatrix in this case is absolutely unimportant so far as
the validity of her will is concerned. The plain wording of the statute shows that the
requirement laid down by the trial court, if it did lay it down, is absolutely unnecessary
under the law; and the reasons underlying the provisions of the statute relating to the
execution of wills do not in any sense require such a provision. From the standpoint of
language it is an impossibility to draw from the words of the law the inference that the
person who signs the name of the testator must sign his own name also. The law requires
only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who
is unable to write may be signed by another by express direction to any instrument known
to the law. There is no necessity whatever, so far as the validity of the instrument is
concerned, for the person who writes the name of the principal in the document to sign
his own name also. As a matter of policy it may be wise that he do so inasmuch as it
would give such intimation as would enable a person proving the document to
demonstrate more readily the execution by the principal. But as a matter of essential
validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it
be written by himself or by another at his request, it is none the less valid, and the fact of
such signature can be proved as perfectly and as completely when the person signing for
the principal omits to sign his own name as it can when he actually signs. To hold a will
invalid for the lack of the signature of the person signing the name of the principal is, in
the particular case, a complete abrogation of the law of wills, as it rejects and destroys a
will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine
which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte
Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of
these cases is in point. The headnote in the case last above stated gives an indication of
what all of the cases are and the question involved in each one of them. It says:

"The testatrix was not able to sign her name to the will, and she requested another person
to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That
the will was not duly executed."

All of the above cases are precisely of this character. Every one of them was a case in
which the person who signed the will for the testator wrote his own name to the will
instead of 'writing that of the testator, so that the testator's name nowhere appeared
attached to the will as the one who executed it. The case of Ex parte Arcenas contains the
following paragraph:

"Where a testator does not know how, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner: 'John Doe, by the testator, Richard
Roe;' or in this form: 'By the testator. John Doe, Richard Roe.' All this must be written by
the witness signing at the request of the testator."

The only question for decision in that case, as we have before stated, was presented by
the fact that the person who was authorized to sign the name of the testator to the will
actually failed to sign such name but instead signed his own thereto. The decision in that
case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case
have set forth no reason whatever why the will involved in the present litigation should
not be probated. The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of
which we have already spoken. We there held that said later will was not the will of the
deceased.

The judgment of the probate court must be and is hereby reversed and that court is
directed to enter an order in the usual form probating the will involved in this litigation
and to proceed with such probate in accordance with law.
 [ G.R. No. 9150, March 31, 1915 ]
MARIANO LEANO, PETITIONER AND APPELLANT, VS. ARCADIO
LEANO, OBJECTOR AND APPELLEE.

DECISION

CARSON, J.:

The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed her
cross against her name, attached by some other person to the instrument offered for
probate  which purports to be her last will and testament, in the presence of the three
witnesses whose names are attached to the attesting clause, and that they attested and
subscribed the instrument in her presence and in the presence of each other.

We are of the opinion that the placing of the cross opposite her name at the conclusion of
the instrument was a sufficient compliance with the requirements of section 618 of the
Code of Civil Procedure, which prescribes that except where wills are signed by some
other person than the testator in the manner and form therein indicated, a valid will must
be signed by the testator. The right of a testator to sign his will by mark, executed animo
testandi, has  been uniformly sustained by the courts of last resort of the  United States in 
construing statutory provisions prescribing the mode of execution of wills in language
identical with, or substantially similar to that found in section 618 of our code, which was
taken from section 2349 of the Code of Vermont. (Page on Wills, par. 173, and the cases
there cited in support of the doctrine just announced.)

The trial judge was of contrary opinion, and declined to admit the instrument to probate
as the last will and testament of the decedent. We are of opinion, however, that the
evidence of record satisfactorily establishes the execution of that instrument as and for
her last will and testament in the manner and form prescribed by law.

The judgment entered in the court below should therefore be reversed, without costs in
this  instance, and the record remanded to the court below, where judgment will be
entered admitting the instrument in question to probate in accordance with the prayer of
the petitioner. So ordered.

[ G. R. No. L-4067, November 29, 1951 ]

IN THE MATTER OF THE WILL OF ANTERO MERCADO, DECEASED.
ROSARIO GARCIA, PETITIONER, VS. JULIANA LACUESTA, ET AL.,
 RESPONDENTS.

DECISION

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:

"We, the undersigned, lay these presents do declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it bears the corresponding number in letter
which compose of three pages and all of them were signed in the presence of the testator
and witnesses, and the witnesses in the presence of the testator and all and each and every
one of us witnesses.

"In testimony, whereof, we sign this testament, this the third day of January, one
thousand nine hundred forty three, (1943) A. D.

HUMERIANO
(Sgd.) (Sgd.) BOSENDO CORTES
EVANGELISTA
(Sgd.) "BIBIANA ILLEGIBLE."    

The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A ruego del testador" and the name of Florentino
Javier. Antero Meroado is alleged to have written a cross immediately after his name.
The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all
the left margins of the three pages and at the end of the will by Atty. Florentine Javier at
the express request of the testator in the presence of the testator and each and every one
of the witnesses; (2) to certify that after the signing of the name of the testator by Atty.
Javier at the former's request said testator has written & cross at the end of his name and
on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereof in the presence
of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written by the testator
after his name is a sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is chat the cross is as much a signature as a thumbmark,
the latter having been held Sufficient by this Court in the cases of De Gala vs. Gonzales
and Ona, 53 Phil. 104; Dolar vs. Diancin, 55 Phil. 479; Payad vs. Tolentino, 62 Phil. 848;
Neyra vs. Neyra, 42 O. G. 2817; and Lopez vs. y Liboro, 46 O.G., 3upp. No. 1, p. 211.

It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature
reflection we are not prepared to liken the mere sign of a cross to a thumbmark, and the
reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.

What has been said makes it unnecessary for us to determine whether there is a sufficient
recital in the attestation clause as to the signing of the will by the testator in the presence
of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So
ordered.

[ G.R. No. L-15153, August 31, 1960 ]

IN THE MATTER OF THE SUMMARY SETTLEMENT OF THE ESTATE
OF THE DECEASED ANACLETA ABELLANA. LUCIO BALONAN,
PETITIONER AND APPELLEE, VS. EUSEBIA ABELLANA, ET AL.,
OPPOSITORS AND APPELLANTS.

DECISION

LABRADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to
probate the will of one Anacleta Abellana. The case was originally appealed to the Court
of Appeals where the following assignment of error is made:

"The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. 'A', was signed in accordance with law; and in admitting the will to
probate."
In view of the fact that the appeal involves a question of law the said court has certified
the case to us.

The facts as found by the trial court are as follows:

"It appears on record that the last Will and Testament (Exhibit 'A'), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and
under his name appears typewritten 'Por la testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page
appears the signature of the three (3) instrumental witnesses Bias Sebastian, Faustino
Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los
Santos and below his signature is his official designation as the notary public who
notarized the said testament. On the first page on the left margin of the said instrument
also appear the signatures of the instrumental witnesses. On the second page, which is the
last page of the said last Will and Testament, also appears the signature of the three (3)
instrumental witnesses and on that second page on the left margin appears the signature
of Juan Bello under whose name appears handwritten the following phrase, 'Por la
Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public,
Attorney Timoteo de los Santos." (Italics supplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A.
Abello above the typewritten statement "Por la Testadora Anacleta Abellana * * *,
Ciudad de Zamboanga," comply with the requirements of the law prescribing the manner
in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:

"Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person 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." (Italics supplied.)

The clause "must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence and by his express
direction," is practically the same as the provisions of Section 618 of the Code of Civil
Procedure (Act No. 190) which reads as follows:

"No will, except as provided in the preceding section shall be valid to pass any estate, real
or personal, nor charge or affect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other 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 each other. * * * " (Italics supplied)
Note that the old law as well as the new require that the testator himself sign the will, or
if he cannot do so, the testator's name must be written by some other person in his
presence and by his express direction. Applying this provision this Court said in the case
of Ex Parte Pedro Arcenas, et al., 4 Phil., 700:

"It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that
where the testator does not know how, or is unable, to sign, it will not be sufficient that
one of the attesting witnesses signs the will at the testator's request, the notary certifying
thereto as provided in article 695 of the Civil Code, which, in this respect, was modified
by section 618 above referred to, but it is necessary that the testator's name be written by
the person signing in his stead in the place where he would have signed if he knew how
or was able so to do, and this in the testator's presence and by his express direction; so
that a will signed in a manner different than that prescribed by law shall not be valid and
will not be allowed to be probated.

"Where a testator does not know how, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner:

'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John Doe,
Richard Roe.' All this must be written by the witness signing at the request of the testator.

"Therefore, under the law now in force, the witness Naval A. Vidal should have written at
the bottom of the will the full name of the testator and his own name in one of the forms
given above. He did not do so, however, and this failure to comply with the law is a
substantial defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it."

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the
case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it
clearly appears that the name of the testatrix was signed at her express direction; it is
unimportant whether the person who writes the name of the testatrix signs his own or not.
Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written
under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a
failure to comply with the express requirement in the law that the testator must himself
sign the will, or that his name be affixed thereto by some other person in his presence and
by his express direction.

It appearing that the above provision of the law has not been complied with, we are
constrained to declare that the said will of the deceased Anacleta Abellana may not be
admitted to probate.
Wherefore, the decision appealed from is hereby set aside and the petition for the probate
of the will denied. With costs against petitioner.

[ G.R. No. 1641, January 19, 1906 ]

GERMAN JABONETA, PLAINTIFF AND APPELLANT, VS. RICARDO
GUSTILO ET AL., DEFENDANTS AND APPELLEES.

DECISION

CARSON, J.:

In these proceedings probate was denied the last will and testament of Macario Jaboneta,
deceased, because the loAver court was of the opinion from the evidence adduced at the
hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in
the presence of Isabelo Jena, another of the witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular point,
being a part of the testimony of the said Isabelo Jena:

"Q. Who first signed the will?—A. I signed it first, and afterwards Aniceto and the
others.

"Q. Who were those others to whom you have just referred?—A. After the witness
Aniceto signed the will I left the house, because I was in a hurry, and at the moment
when I was leaving I saw Julio Javellana with the pen in his hand in position ready to
sign (en actitud de firmar). I believe he signed, because he was at the table. * * *

"Q. State positively whether Julio Javellana did or did not sign as a witness to the will.—
A. I can't say certainly, because as I was leaving the house I saw Julio Javellana with the
pen in his hand, in position ready to sign. I believe he signed.

"Q. Why do you believe Julio Javellana signed?—A. Because he had the pen in his hand,
which was resting on the paper, though I did not actually see him sign.

"Q. Explain this contradictory statement.—A. After I signed I asked permission to leave,
because I was in a hurry, and while I was leaving Julio had already taken the pen in his
hand, as it appeared, for the purpose of signing, and when I was near the door I happened
to turn my face and I saw that he had his hand with the pen resting on the will, moving it
as if for the purpose of signing.
"Q. State positively whether Julio moved his hand with the pen as if for the purpose of
signing, or whether he was signing.—A. I believe he was signing." The truth and
accuracy of the testimony of this witness does not seem to have been questioned by any
of the parties to the proceedings, but the court, nevertheless, found the following facts:

"On the 26th day of December, 1901, Macario Jaboneta executed under the following
circumstances the document in question, which has been presented for probate as his will:

"Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as his will. They were all together,
and were in the room where Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at his request, and in his presence
and in the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness
in the presence of the testator, and in the presence of the other two persons who signed as
witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the
room. As he was leaving the house Julio Javellana took the pen in his hand and put
himself in position to sign the will as a witness, but did not sign in the presence of Isabelo
Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a
witness in the presence of the testator and of the witness Aniceto Jalbuena."

We can not agree with so much of the above finding of facts as holds that the signature of
Javellana was not signed in the presence of Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure. The fact that Jena was still in the room when
he saw Javellana moving his hand and pen in the act of affixing his signature to the will,
taken together with the testimony of the remaining witnesses, which shows that Javellana
did in fact there and then sign his name to the will, convinces us that the signature was
affixed in the presence of Jena. The fact that he was in the act of leaving, and that his
back was turned while a portion of the name of the witness was being written, is of no
importance. He, with the other witnesses and the testator, had assembled for the purpose
of executing the testament, and were together in the same room for that purpose, and at
the moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the proper direction, and
without any physical obstruction to prevent his doing so, therefore we are of opinion that
the document was in fact signed before he finally left the room.

"The purpose of a statutory requirement that the witness sign in the presence of the
testator is said to be that the testator may have ocular evidence of the identity of the
instrument subscribed by the witness and himself, and the generally accepted tests of
presence are vision and mental apprehension. (Hee Am. & Eng. Enc. of Law, vol. 30, p.
599, and cases there, cited.)"
In the matter of Bedell (2 Connoly (N. Y.), 328) it was held that it is sufficient if the
witnesses are together for the purpose of witnessing the execution of the will, and in a
position to actually see the testator write, if they choose to do so; and there are many
cases which lay down the rule that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him sign, considering his
mental and physical condition and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator
and the witnesses are equally applicable in determining whether the witnesses signed the
instrument in the presence of each other, as required by the statute, and applying them to
the facts proven in these proceedings we are of opinion that the statutory requisites as to
the execution of the instrument were complied with, and that the lower court erred in
denying probate to the will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these
proceedings was satisfactorily proven to be the last will and testament of Macario
Jaboneta, deceased, and that it should therefore be admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and
after twenty days the record will be returned to the court from whence it came, where the
proper orders will be entered in conformance herewith. So ordered.

[ G.R. No. 5971, February 27, 1911 ]

BEATRIZ NERA ET AL., PLAINTIFFS AND APPELLEES, VS. NARCISA
RIMANDO, DEFENDANT AND APPELLANT.

DECISION

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the  subscribing
witnesses was present in the small room where it was executed at the time when  the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some  eight  or ten feet away,  in  a  large room connecting with the
smaller room by a doorway, across which was hung a curtain  which made it impossible
for one in the outside  room to  see the testator and the  other subscribing witnesses in the
act of attaching their signatures to the instrument.

A majority of the members  of the court is  of  opinion that this subscribing witness was
in  the small  room with the testator and the other subscribing witnesses at the time when
they  attached their signatures to the  instrument, and this  finding,  of course, disposes of
the  appeal  and necessitates the  affirmance of the decree admitting the document to
probate  as the last will and testament of the deceased.

The trial judge does not  appear to have considered the determination of this question of
fact of vital importance in the determination of this  case, as he was of opinion that under
the  doctrine laid down in the  case  of Jaboneta vs. Gustilo  (5 Phil.  Rep., 541)  the
alleged fact that one of the subscribing witnesses was in the  outer room when the testator
and the other describing witnesses signed the instrument in  the  inner room, had  it been
proven, would not be  sufficient in itself to invalidate the execution of the will. But we
are unanimously of opinion that had this subscribing witness been proven to have been in
the outer room at the time when the testator and the other subscribing witnesses  attached
their signatures  to the instrument in the inner room,  it would have been  invalid as a
will, the attaching of those signatures under such circumstances not being done "in the
presence" of the witness in the outer room.  This because the line of vision from this 
witness to the testator and the other subscribing witnesses would necessarily have been
impeded  by the curtain separating the inner room from the outer one "at the moment of
inscription of each signature."

In the case just cited,  on which  the  trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a Will is
not whether they actually saw each other sign, but whether they might have seen each
other sign, had they chosen to do so, considering their mental and physical  condition and
position  with relation to each other at the moment of  inscription of each signature."
But  it  is especially  to  be noted that the  position of the  parties with relation to  each
other at the moment of the subscription of each signature, must be such that they may see
each other sign if they  choose to do so.  This, of course, does not mean that  the testator
and the subscribing witnesses may be held to have executed the  instrument in the
presence of each  other if it appears that  they would not have been able to see each other
sign at that moment, without changing their  relative  positions or existing conditions.  
The evidence in the case relied upon by the trial judge discloses that "at the  moment
when the witness Javellana signed the document  he was actually and physically present
and in such position with relation to  Jaboneta that he could see everything  that  took
place by merely casting his eyes in the  proper direction  and without any physical
obstruction to prevent his doing  so."  And the decision merely  laid down the doctrine
that  the question whether the testator and the subscribing witnesses to an alleged will
sign the instrument in the presence of  each other does not depend  upon proof of the fact
that their eyes  were actually cast upon the paper  at the  moment  of  its subscription by
each of them,  but that at that moment  existing conditions and their position with relation
to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign.  To extend the doctrine further would  open the  door to  the
possibility of all manner of fraud, substitution, and the like, and would defeat .the
purpose for which this  particular  condition is prescribed in the code as one of the 
requisites in the execution  of a  will.

The decree entered by  the court below admitting the instrument propounded therein  to
probate as the last will and  testament of Pedro Rimando, deceased, is affirmed with costs
of this instance against the appellant.

[ G.R. No. L-23225, February 27, 1971 ]

IN THE MATTER OF THE PETITION TO PROBATE OF THE WILL OF
DIGNA MARAVILLA, HERMINIO MARAVILLA, PETITIONER-
APPELLANT, AND ADELINA SAJO, LEGATEE-APPELLANT, VS. PEDRO
MARAVILLA, ASUNCION MARAVILLA AND REGINA MARAVILLA,
OPPOSITORS-APPELLEES, CONCEPCION KOHLHAAS AND ROSE
MARY KOHLHAAS, INTERVENORS.

DECISION

REYES, J.B.L., J.:

These are appeals (before Republic Act 5440) from the decision of the Court of First
Instance of Negros Occidental, in its Special Proceeding No. 4977, denying the probate
of the will of the deceased, Digna Maravilla.  These appeals were brought to the Court of
Appeals, but said court certified the same to this Supreme Court on 26 May 1964, in
accord with the latter's prior decision in Fernandez, etc., et al. vs. Maravilla, L-18799, 31
March 1964,  which settled the question of appellate jurisdiction in favor of the Supreme
[1]

Court over that of the Court of Appeals, on the appeal from the appointment of a special
co-administrator in the same Special Proceeding No. 4977 in view of the value of the
estate.

Appellant Herminio Maravilla, probate petitioner and husband of the decedent, died

on 16 July 1966, after the case was submitted for decision.  Upon motion for intervention
filed by Concepcion Maravilla Kohlhaas and Rose Mary Kohlhaas, this Supreme Court
allowed their intervention on 24 July 1967, upon showing that their interest as substitute
heirs was vested definitely upon the death of Herminio Maravilla, and that
said movants for intervention merely adopt the pleadings and briefs filed in behalf of the
deceased Herminio Maravilla so that the intervention will not delay the disposition of the
case.[2]
Appellees Pedro , Asuncion and Regina, all surnamed "Maravilla", who are allegedly the
[3]

brother and sisters of the deceased Digna Maravilla and oppositors to the probate, had

moved to require the P.C. Laboratory to submit explanations of the photographs of the
will and the signatures thereon previously filed,  but this Court, considering that such
[4]

explanations would amount to new evidence not heard at the trial, denied the motion on 3
August 1967. [5]

Herminio Maravilla' s petition for probate was opposed by the appellees in an amended

opposition filed in the course of the trial in the court below and admitted without
objection.  The opposition alleged the following grounds:

“a)  That the deceased, Digna Maravilla, the alleged testatrix and the instrumental

witnesses did not sign the alleged will, each and every page thereof, in the presence of
each other;
“b)  That the deceased, Digna Maravilla, the alleged testatrix, affixed her signature to her
alleged will under undue and improper pressure and influence and/or duress brought to
bear upon her by the petitioner, for his own personal benefit and advantage and that of his
nieces, Adelina Sajo and Rose Marie M. Kohlhaas and his half-
sister Conchita Maravilla Kohlhaas;
“c)  That the deceased, Digna Maravilla, at the time she affixed her signature to her
alleged will was not of sound and disposing mind;
“d)  That the alleged will, now being offered for probate had already been revoked by the
deceased, Digna Maravilla." [6]

After trial, the court below rendered judgment, holding as unsubstantiated the last three
(3) grounds above-enumerated, but sustaining the first, that is, that the will was not
executed in accordance with Section 618 of Act 190, and, therefore, denied the probate of
the will.

The petitioner and one Adelina Sajo, who was named a devisee under the questioned will,
appealed the judgment, as aforesaid, assigning errors of fact and law.  The oppositors-
appellees did not appeal but counter-assigned errors in their brief.

There is no controversy that the late Digna Maravilla died

in Manapla, Negros Occidental, on 12 August 1958, leaving an extensive estate.  Prior to
her death, she was a resident of Saravia, same province.  It is, likewise, undisputed that,
at the time of the probate proceedings, only one (1) (Aquilino Mansueto) of the three (3)
attesting witnesses to the will had survived, the two (2) others (Timoteo Hernaez and
Mariano Buenaflor) having died previously.

The will submitted for probate, Exhibit "A", which is typewritten in the Spanish
language, purports to have been executed in Manila on the 7th day of October, 1944; it
consists of five (5) pages, including the page on which the attestation clause was
completed.  The purported signatures of the testatrix appear at the logical end of the will
on page four and at the left margin of all the other pages.  The attestation clause reads as
follows:

"CLAUSULA DE ATESTIGUAMIENTO.
"Nosotros, TIMOTEO HERNAEZ, AQUILINO MANSUETO y MARIANO
BUENAFLOR los abajo firmantes todos mayores de edad y
sin impedimento alguno para ser testigos de este testamento, certificamos y atestiguamos: 
 Cue en la fecha y lugar arriba mencionados Da. DIGNA MARAVILLA
ha otorgado el presente documento como su testamento y ultima voluntad que consta de c
inco paginas utiles incluyendo esta pagina de atestiguamiento, escrito a maquinilla en una 
sole cara de cadahoja, todas paginadas correlativamente en letras de puño y letra de
la testadora, habiendo dicha testadora, despues de leido el mismo en nuestra presencia, fir
mado por triplicado al pie de este testamento y
al margen izquierdo de cada una de las cinco paginas de que se compone en presencia de 
todos y cada uno de nosotros que tambien firmamos en
el margen izquierdo de cada pagina y al pie
de este atestiguamiento los unos en presencia de los otros y todos en presencia de
la testadora, quien en el acto del otorgamiento y firma
de este documento se halla en plena capacidad intelectual, amenazada ni enganada para ot
orgar y firmar este testamento.
"Asi lo atestiguamos y firmamos por triplicado de nuestro puño y letra en
Manila hoy a siete de Octubre de mil novecientos cuarenta y cuatro."

At the bottom thereof appear the purported signatures

of Timoteo Hernaez, Aquilino Mansueto and Mariano Buenaflor, attesting
witnesses.  Their signatures appear also on the left margin of all the five (5) pages.  The
paging of the will is by handwritten words, such as "Pagina Primera", "Pagina Segunda",
etc., written at the top of each page.  On the lower half of the third page, before the name
"CONCEPCION P. MARAVILLA", is the typewritten word "hermana", which was
crossed out, and over it was handwritten the word "cuñada", bearing, at the left thereof,
the initials "D. M."

After the legacies in favor of herein appellant Adelina Sajo, a niece of Digna Maravilla,

the latter's sister-in-law, Concepcion P. Maravilla de Kohlhaas,
and Concepcion's daughter, Rose Mary Kohlhaas, the will named
appellant Herminio Maravilla as universal heir and executor.  In case of the heir's death,
or if he should not become heir for any reason, he is to be substituted by the
legatee Adelina Sajo in one-half of the properties bequeathed, the other half to pass
collectively to legatees Concepcion P. Maravilla and the daughter of the latter, Rose
Mary Kohlhaas.  All previous wills are declared revoked.
In view of the trial court's decision of 8 February 1960 (Record on Appeal, pages 25-51)
refusing probate of the will, the instituted heir, Herminio Maravilla, end the
legatee, Adelina Sajo, perfected their appeal, assigning as errors the findings of the trial
court that (a) instrumental witness Aquilino Mansueto did not actually
see Digna Maravilla sign the will; (b) that Digna Maravilla was not present
when Mansueto signed the will as witness; (c) that Mansueto "most probably" did not see
Mariano Buenaflor sign as witness to the will; (d) the testimony of attorney Manuel
Villanueva on the due execution of Digna Maravilla's testament was biased and not
deserving of credit; and (e) in refusing probate to the alleged will for not having been
executed with the requisites prescribed by Section 618 of Act 190.

At the hearing before the court a quo, only one of the three instrumental
witnesses, Col. (ret.) Aquilino Mansueto, appeared and testified, inasmuch as the other
two witnesses (Timoteo Hernaez and Mariano Buenaflor) concededly died prior to the
trial of the case.  Col. Mansueto identified his own signature and those of
Dr. Timoteo Hernaez and of Digna Maravilla, and asserted that the latter did sign in the
presence of all three witnesses and attorney Villanueva1; that Hernaez signed in his
presence and in the presence of the other witnesses and of Digna Maravilla; and that
present at the signing were "Dr. Timoteo Hernaez, Mr. Mariano Buenaflor, attorney
Manuel Villanueva, and both Herminio Maravilla and Mrs. Digna Maravilla" (the
testatrix) and identified his signature and those of Digna and Hernaez2 although,
subsequently, the witness admitted that he could not remember very well whether
Mr. Maravilla was there at the time he signed the will.  The witness explained that he
could not remember some details because fourteen years had elapsed, and when he signed
as a witness, he did not give it any importance, and because at the time he
(Col. Mansueto) was very worried because of rumours that the
Japanese Kempeitai would arrest officers of the USAFFE who did not want to
collaborate.3

Colonel Mansueto's testimony was supported by that of the husband of the

testatrix, Herminio Maravilla, and of attorney Manuel
Villanueva.  Herminio Maravilla's evidence is that a week before 7 October 1944 his
wife, Digna Maravilla, told him of her desire to "renew" her will because of the critical
period in Manila before the liberation;4; he invited Buenaflor, Hernaez and Mansueto to
attest to the will5; sent his messenger, Mariano Buenaflor, to ask attorney Manuel
Villanueva to come to his house at Mabini, Ermita, Manila, in order to prepare the will6;
at his wife's request, he gave the list of properties to Villanueva 7; he knew that the will
was executed in the dining room while he remained in the sala8: and
Villanueva, Mansueto, Hernaez and Buenaflor were in his house in the morning of 7
October 1944 and sat with his wife around the table in the dining room, with Villanueva
at one end, Cigna beside him and the witnesses facing each other;9; and after the signing
they had lunch, at his invitation, and when they were eating, petitioner Maravilla saw the
three (3) copies of the will on the dining table.10 However, he did not see them sign.11
Attorney Manuel Villanueva, as third witness for the proponent asserted that he had been
the lawyer of the Maravillas; that 5 or 6 days before 7 October 1944 he had been
summoned through Mariano Buenaflor to the house of the Maravillas at
222 Mabini, Ermita, Manila, and there met Digna who requested him to draft a new will,
revoking her old one, to include as additional
beneficiaries Adelina Sajo, Concepcion Maravilla, and the latter's youngest daughter,
dose Mary Kohlhaas, who lived with her (Digna) and whom she considered as her real
children, having cared for them since childhood.  Digna gave Villanueva instructions
concerning the will, and handed him her old will and a handwritten list of the certificates
of title of her properties, which list she asked and obtained from her husband.  Before
leaving, Villanueva asked Digna to look for three witnesses; their names were furnished
him two or three days later and he sent word that the will could be executed on 7 October
1944 (as it actually was); on that day he brought one original and 2 copies with him, and
handed them to Digna; she read the document and while doing so the
witnesses Mansueto, Hernaez and Buenaflor came.  Villanueva talked with them and
satisfied himself that they were competent, whereupon all proceeded to the dining room
table.  Attorney Villanueva sat at the head thereof, Digna at his right, and Hernaez at the
right of Digna; at his left was first Mansueto and then Buenaflor.  At the lawyer's
behest Digna Maravilla read the will in the presence of the witnesses; after reading she
called his attention to a clerical error on page 3, at the second to the last line of paragraph
9, where Concepcion Maravilla was designated as "hermana"; the word was cancelled by
the testatrix who wrote "cuñada" above the cancelled word, and placed her initials "D. M.
" beside it.  She also wrote on top of each page the words "Pagina primera",
"Pagina Segunda" and so on, upon Villanueva's instructions, and then Digna and the
witnesses signed in the presence of one another and of attorney Villanueva. 12 The latter
did not ask the husband (Herminio) to join the group when the will was executed,
and Herminio remained near the window in the sala.13 Digna appeared to the witness very
healthy and spoke in Spanish intelligently.  The signing ended around 12:30 p.m., and
after it all ate lunch.14

Upon the evidence, the trial judge concluded that Mansueto did not actually
see Digna Maravilla sign the will in question, basing such conclusion upon the fact that
while Mansueto positively identified his own signature ("I identify this as my signature")
but not that of the testatrix, his five answers to the questions of counsel, in reference
thereto, being "this must be the signature of Mrs. Digna Maravilla”.

In our opinion, the trial court's conclusion is far fetched, fanciful and unwarranted.  It was
but natural that witness Mansueto should be positive about his own signature, since he
was familiar with it.  He had to be less positive about Digna Maravilla's signature since
he could not be closely acquainted with the same:  for aught the record shows, the signing
of the will was the only occasion he saw her sign; he had no opportunity to study her
signature before or after the execution of Exhibit "A”.  Furthermore, he
witnessed Digna's signing not less than fourteen years previously.  To demand that in
identifying Digna's signature Mansueto should display a positiveness equal to the
certainty shown by him in recognizing his own, exceeds the bounds of the
reasonable.  The variation in the expressions used by the witness is the best evidence that
he was being candid and careful, and it is a clear badge of truthfulness rather than the
reverse.

The trial court's error gains no support from Mansueto's statement on cross-examination

that "I remember and (I) signed the will in the presence of all the witnesses and in the
presence of attorney Villanueva" (page 29, Volume 1, T.s.n., Amago).  In the absence of
an assurance that no one else was present, this assertion does not really
contradict Mansueto's testimony in chief that "I have read the entire document before I
signed it in the presence of the other witnesses, Digna Maravilla and Attorney
Villanueva" (t.s.n., Amago, Volume 1, pages 18-19).  It is well to note that the cross
examiner did not ask Mansueto if no one else besides those mentioned by him had seen
him sign.  Any contradiction inferred from both statements is purely conjectural; it did
not come from the witness and is insufficient to impeach his veracity, the difference in
the answers being due to no more than an accidental lapse of memory.  A will may be
allowed even if some witnesses do not remember having attested it, if other evidence
satisfactorily show due execution (V. Act 190, Section 632), and that failure of witness to
identify his signature does not bar probate.15

That Mansueto, Hernaez and Buenaflor, together with the testatrix and the lawyer, sat

next to one another around one table when the will was signed is clearly established by
the uncontradicted testimony of both attorney Villanueva and Herminio Maravilla; and
that detail proves beyond doubt that each one of the parties concerned did sign in the
presence of all the others.  It should be remembered, in this connection, that the test is not
whether a witness did see the signing of the will but whether he was in a position to see if
he chose to do so.16

The trial court rejected the evidence of both Herminio Maravilla and Manuel Villanueva,

giving as a reason that they were biased and interested in having the probate
succeed.  The reasoning is not warranted:  for Herminio Maravilla certainly stood to gain
more under the previous will of his wife (Exhibit "G") where he was made the sole
beneficiary.  As to attorney Villanueva, while he had been a friend of Herminio from
boyhood, he also had been the family lawyer, and his intervention in the execution of the
will of one of his clients became inevitable, for it is not to be expected that the testatrix
should call upon a stranger for the purpose.  If Villanueva wished to perjure in favor
of Herminio, all he needed was to color his testimony against the due execution of the
will (Exhibit "A") and not in favor thereof, since, as previously observed, Digna's first
will (Exhibit "G") was more advantageous to the widower.
We find it difficult to understand the trial court's distrust of a lawyer who did no more
than discharge his professional duty, or its readiness to attribute improper motives to
proponent's witnesses.  This Court, in Sotelo vs. Luzan, 59 Phil. 908, has remarked that -

"It is hardly conceivable that any attorney of any standing would risk his professional
reputation by falsifying a will and then go before a court and give false testimony."

And in Fernandez vs. Tantoco, 49 Phil. 380, 385, We ruled:

"'In weighing the testimony of the attesting witnesses to a will, the statements of a
competent attorney, who has been charged with the responsibility of seeing to the proper
execution of the instrument, is entitled to greater weight than the testimony of a person
casually called to participate in the act, supposing of course that no motive is revealed
that should induce the attorney to prevaricate.  The reason is that the mind of the attorney,
being conversant with the requisites of proper execution of the instrument, is more likely
to become fixed on details, and he is more likely than other persons to retain those
incidents in his memory.'" (Emphasis supplied)

Appellees endeavoured to sustain the court's refusal to probate the will by referring to the
evidence of their witness Marino Tupas, a man of "no permanent job"17, who narrated
that on the last week of September, 1944 one Mariano Buenaflor had been introduced to
him by one Lt. Garaton at his guerrilla outpost in Montalban and described as a man
wanted by the Japanese.  Tupas' patently exaggerated testimony is that
this Buenaflor stayed with him at his outpost camp until January, 1945, living and
sleeping with him, and was never for a single moment out of his sight18.  Why a civilian
refugee should remain at a guerrilla outpost for four months, without engaging in any
particular helpful activity on his part, was not explained.  Shown photographs and asked
to identify Buenaflor, Tupas hedged by pleading that the Buenaflor who stayed with him
had a long beard.  Thus, oppositor-appellees' reverse alibi for the instrumental witness,
Mariano Buenaflor, was not only patently mendacious but did not establish any reliable
connection between the instrumental witness of Digna's will and the Buenaflor who,
according to Tupas, stuck to him as a burr in 1944.  No wonder the trial court gave no
credit to such evidence.

Oppositors' attempts to establish that the testatrix Digna Maravilla was mentally

incompetent to validly execute the will in question met no better fate in the court
below.  They introduced one Eufrocina Berja who qualified Digna Maravilla as insane
because she saw Digna Maravilla acting strangely one morning in 1921 (23 years before
the will was executed).  In Berja's own words -

"Would you not call a person insane who is waving a bunch of flowers and singing along
a road, especially taking into consideration their reputation in the Community?" (t.s.n., 21
May 1959, page 19)
Even if to this ridiculous appraisal were to be added the fact that (according to this
witness) Digna saw her in 1946, but would not answer her questions and "was in a deep
thought (sic) and her tongue was coming out of her mouth" (Do., pages 14-15), her
evidence would certainly not justify a finding that Digna Maravilla was not competent to
execute the testament in 1944.  By Berja's standards, any one could be held insane.

Nor is the case for the oppositors improved by the evidence of their

witness Eleazar Lopez, who asserted having visited his aunt, Digna Mara-villa (whom he
had not seen since he was four years old), two days after the first bombing of Manila by
the American planes in September, 1944.  Lopez claimed to have seen Digna on that
occasion laughing and crying and then staring blankly at the ceiling, without recognizing
the witness; and that he visited her again toward mid-October of the same year and she
had worsened.19 Coming from a nephew who expected to succeed if the will in question
were denied probate, and who sought to become administrator of the estate, even offering
to resign from his position in the government if appointed20, this testimony of Lopez was
evidently colored by his monetary interest, thus leading to its correct discrediting by the
trial court.  His recollection after 15 years of the alleged symptoms of his aunt is very
suspicious, as it does not even appear that Lopez at the time bothered to inquire from
other persons what caused his aunt's alleged abnormal condition.  Moreover, the court's
duty to reconcile conflicts of evidence should lead it to hold that the symptoms described
by Lopez were due to a temporary disturbance of the nerves caused by the unsettling
effect of a bombardment not previously experienced, compatible with the due execution
of the will on 7 October 1944.  As between the testimony of Lopez and that of attorney
Villanueva, who repeatedly visited and talked to the testatrix around the time her will was
executed, We have no hesitation in accepting the latter's view that Digna Maravilla was
competent to make the will when it was signed.  The law itself declares that -

"To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties or that his mind be wholly unbroken unimpaired or unshattered by
disease, injury or other cause." (Civil Code, Article 799; Bugnao vs. Ubag, 14 Phil. 163).

We are satisfied that the preponderance of evidence is to the effect that the testament,
Exhibit "A", was duly executed by a qualified testatrix and competent witnesses, in
conformity with the statutory requirements.

IN VIEW OF THE FOREGOING, the decree of the court below denying probate of
the 1944 will of Digna Maravilla (Exhibit "A") is reversed and the said testament is
hereby ordered probated.  Let the records be returned to the Court of origin for further
proceedings conformable to law.  Costs against oppositors-appellees.

[ G.R. No. 26545, December 16, 1927 ]

 TESTATE ESTATE OF FLORENCIA R. MATEO. PERFECTO GABRIEL,
PETITIONER AND APPELLEE, VS. RITA R. MATEO ET AL., OPPONENTS
AND APPELLANTS.

DECISION

AVANCEÑA, J.:

The judgment appealed from allowed the will of Florencia Mateo dated February 6, 1923,
composed of two used sheets to probate. The will appears to be signed by the testatrix
and three witnesses on the left margin of each of the sheets, by the testatrix alone at the
bottom, and by the three witnesses after the attestation clause. The testatrix died on
August 13, 1925. Opposition to such probate was filed by Rita Mateo, the testatrix's
sister, and by other relatives.

The three attesting witnesses to this will, testifying in this case, declared that the
signatures of the testatrix were written in their presence and that they signed their names
in the presence of the testatrix and of each other. The testatrix from girlhood knew how to
sign her name and did so with her right hand; but, as the right side of her body later
became paralyzed, she learned to sign with her left hand and for many years thereafter, up
to the time of her death, she used to sign with that hand. Opponents allege that Florencia
Mateo did not sign this will.

There are three salient arguments among those adduced by the opponents in support of
their opposition.

The attesting witnesses testified that the testatrix signed before they did. The signatures
of the testatrix on the left margin of the two sheets of the will are between the signatures
of the two witnesses Vidal Ranoa and Julio Gabriel, and below her surname is the
signature of the other witness Felicisimo Gabriel. The signatures of Vidal Rafioa and
Julio Gabriel are on a level with each other, while that of Felicisimo Gabriel is found a
little lower down. The testatrix's signatures start on the line with Felicisimo Gabriel's
signature, but tend to rise and her surname reaches a level with Julio Gabriel's signature.

It is said that this direction of the testatrix's signature was due to the fact that when it was
written Felicisimo Gabriel's signature was already there, and so she had to write her
surname upwards in order to ayoid interfering with that of Felicisimo Gabriel, which
would have been the case had she continued on the horizontal line on which she had
written her first name. From this detail it is pretended to draw the inference that the
attesting witnesses signed before the testatrix, contrary to their testimony that she signed
before they did. This deduction,however, is unnecessary. It may be inferred with equal, if
not greater, logic that the testatrix signed before him, and when it came to the witness
Gabriel's turn, he, finding the space below the testatrix's signature free, signed his name
there. On the other hand, it may be noted that the testatrix's other signature at the bottom
of the will also shows a more or less marked tendency to rise, notwith-standing the fact
that there was no signature with which she might interfere if she continued to write in a
straight horizontal line. Furthermore, if, as the opposition alleges, the testatrix's signature
is not genuine and was placed there by another person, it is strange that the latter should
have done so in such a way as to write it above Gabriel's signature while following the
horizontal, line, when this could have been avoided by simply putting it a little higher.
And this may be attributed to carelessness in the first case, but it cannot be so explained
in the second.

Attention is also called to the apparently different kinds of ink used by the testatrix in her
signature and by the attesting witnesses. Really an examination of these signatures
reveals a somewhat deeper intensity of ink in the signature of the testatrix than in those of
the attesting witnesses. It is alleged that this circumstance cannot be reconciled with the
declaration of the attesting witnesses that they used the same pen and ink as the testatrix.
But, only one of these witnesses declared this. The other one was not sure of it and said
that he did not perfectly remember this detail. The third scarcely made reference to this
particular. At all events, this apparent difference in ink may be merely due—supposing
that the same ink and pen were used—to the difference in pressure employed in writing
these signatures, as is reasonable to suppose when we consider that the testatrix was a
paralytic and wrote with her left hand; or it may have been due to the fact that the at-
testing witnesses dipped lightly in the ink while the testatrix dipped the pen so as to take
up the ink from the bottom of the well. To bring out this irregularity, the opposition
presented the expert Del Rosario who asserted, among other things, that the signature of
the testatrix is more recent than that of the attesting witnesses. If this opinion Is correct
and if, as alleged, the testatrix's signature is forged, it would mean that the forgers, after
having prepared the will and made the witnesses sign, allowed some time to elapsed
before forging the testatrix's signature, which supposition is not at all probable, nor has it
been explained.

At all events, even admitting that there is a certain question as to whether the attesting
witnesses signed before or after the testatrix, or whether or not they signed with the same
pen and ink, these are details of such trivial importance, considering that this will was
signed two years before the date on which these witnesses gave their testimony, that it is
not proper to set aside the will for this reason alone.

The attesting witnesses to this will, who testified also as witnesses at the trial of this case,
showed themselves to be intelligent and honest, one of them being a lawyer of twelve
years' practice, and there is no reason to reject their testimony, and to suppose that they
were untruthful in testifying, and that they falsified the will in question.

Lastly, attention is called to the unreasonableness of the testatrix in not leaving anything
to the principal opponent, her sister Rita Mateo, and to her nephews and nieces, to whom
she had been so affectionate during life. But as to the affectionate relations between the
deceased and the opponents, only the opponent Rita Mateo testified, and she only stated
that she was on good terms with her sister during the latter's lifetime; that the said sister
used to give her a sack or some gantas of rice, and, at times, a little money; that she held
all her nephews and nieces in equal regard. But even supposing that this were so, there is
nothing strange in the testatrix having left nothing to the opponents, or in her having left
all of her estate to the only heir instituted in her will, Tomasa Mateo, who is also one of
her nieces. And not only is it not strange, but it seems reasonable, since, according to the
evidence of the opposition itself, Tomasa Mateo had been taken in by the testatrix when
the former was but 3 years old, and from then on up to the time of her death had never
been separated from her.

The opposition presented Doctor Banks as expert. He testified that the signatures of the
testatrix in the will are not genuine. The petitioner, on the other hand, presented another
expert, Pedro Serrano Laktao, who affirmed that these signatures are genuine. But, over
the testimony of these experts, we have the categorical and positive declaration of
veracious witnesses who affirm that these signatures were written by the testatrix herself.

The judgment appealed from is affirmed, with costs against the appellants. So ordered.

FIRST DIVISION
[ G.R. No. L-37453, May 25, 1979 ]
RIZALINA GABRIEL GONZALES, PETITIONER, VS. HONORABLE
COURT OF APPEALS AND LUTGARDA SANTIAGO, RESPONDENTS.

DECISION

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division,
 promulgated on May 4, 1973 in CA-G.R. No. 36523-R which reversed the decision of
[1]

the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of
the last will and testament of the deceased Isabel Gabriel.

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a

petition with the Court of First Instance of Rizal, docketed as Special Proceedings No.
3617, for the probate of a will alleged to have been executed by the deceased Isabel
Gabriel and designating therein petitioner as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal, her place of residence,
on June 7, 1961 at the age of eighty-five (85), having been born in 1876.  It is likewise
not controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private
respondent, with her husband and children, lived with the deceased at the latter's
residence prior and up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears
to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months
prior to the death of Isabel Gabriel.  It consists of five (5) pages, including the pages
whereon the attestation clause and the acknowledgment of the notary public were
written.  The signatures of the deceased Isabel Gabriel appear at the end of the will on
page four and at the left margin of all the pages.  The attestation clause, which is found
on page four, reads as follows:

"PATUNAY NG MGA SAKSI

"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat 
sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito,
ay pagpapatutuo na ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, 
ngayong ika 15 ng April, 1961, ay nilagdaan ng nasabing testadora na si Isabel
Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon 
(page four) at nasa itaas ng patunay naming ito,
at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and
every page), sa harap ng lahat at bawat isa sa amin,
at kami namang mga saksi ay lumagda sa harap ng nasabing testadora,
at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwan
g panig ng lahat at bawa't dahon ng testamentong ito."

At the bottom thereof, under the heading "Pangalan", are written the signatures
of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same,
under the heading "Tirahan", are their respective places of residence, 961 Highway
54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the
two Gimpayas.  Their signatures also appear on the left margin of all the other
pages.  The will is paged by typewritten words as follows:  "Unang Dahon" and
underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery
of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all
expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies
in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her
brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein
petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina, Rudyardo,
Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago.  To herein private
respondent Lutgarda Santiago, who was described in the will by the testatrix as
"aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang t
unay na anak" and named as universal heir and executor, were bequeathed all properties
and estate, real or personal, already acquired, or to be acquired, in her (testatrix's) name,
after satisfying the expenses, debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:

1.  that the same is not genuine; and in the alternative

2.  that the same was not executed and attested as required by law;
3.  that, at the time of the alleged execution of the purported will, the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4.  that the purported will was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962.  After trial,

the court a quo rendered judgment, the summary and dispositive portions of which read:

"Passing in summary upon the grounds advanced by the oppositor, this Court finds:
"1.  That there is no iota of evidence to support the contention that the purported will of
the deceased was procured through undue and improper pressure and influence on the
part of the petitioner, or of some other person for her benefit;
"2.  That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity due to
old age and sickness;
"3.  That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
"4.  That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported will allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will and
testament of the deceased Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court,
hence, the only issue decided on appeal was whether or not the will in question was
executed and attested as required by law.  The Court of Appeals, upon consideration of
the evidence adduced by both parties, rendered the decision now under review, holding
that the will in question was signed and executed by the deceased Isabel Gabriel on April
15, 1961 in the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing
the document in the presence of the deceased and of each other as required by law,
 hence allowed probate.
[2]

Oppositor Rizalina Gabriel Gonzales moved for reconsideration  of the aforesaid

[3]

decision and such motion was opposed  by petitioner-

[4]

appellant Lutgarda Santiago.  Thereafter, parties submitted their respective Memoranda,

 and on August 28, 1973, respondent Court, Former Special First Division, by
[5]

Resolution  denied the motion for reconsideration stating that:

[6]

"The oppositor-appellee contends that the preponderance of evidence shows that the

supposed last will and testament of Isabel Gabriel was not executed in accordance with
law because the same was signed on several occasions, that the testatrix did not sign the
will in the presence of all the instrumental witnesses, and that said instrumental witnesses
did not sign the will in the presence of each other.
"The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence.  We have carefully re-examined the oral and documentary
evidence of record.  There is no reason to alter the findings of fact in the decision of this
Court sought to be set aside. [7]

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that

respondent Court abused its discretion and/or acted without or in excess of its jurisdiction
in reversing the findings of fact and conclusions of the trial court.  The Court, after
deliberating on the petition but without giving due course resolved, in the Resolution
dated Oct. 11, 1973 to require the respondents to comment thereon, which comment was
filed on Nov. 14, 1973.  Upon consideration of the allegations, the issues raised and the
arguments adduced in the petition, as well as the Comment  of private respondent
[8]

thereon, We denied the petition by Resolution on November 26, 1973,  the question
[9]

raised being factual and for insufficient showing that the findings of fact by respondent
Court were unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a

Motion for Reconsideration  which private respondent answered by way of her
[10]

Comment or Opposition  filed on January 15, 1974.  A Reply and Rejoinder to Reply
[11]

followed.  Finally, on March 27, 1974, We resolved to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I.      The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely no
proof that the three instrumental witnesses were credible witnesses.

II.     The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the will Exhibit "F", was unexpected and
coincidental.

III.    The Court of Appeals erred in finding that Atty. Paraiso was not previously

furnished with the names and residence certificates of the witnesses as to enable
him to type such data into the document Exhibit "F".

IV.    The Court of Appeals erred in holding that the fact that the three typewritten
lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same
occasion.

V.     The Court of Appeals erred in reversing the trial court's finding that it was
incredible that Isabel Gabriel could have dictated the will, Exhibit "F", without
any note or document, to Atty. Paraiso.

VI.    The Court of Appeals erred in reversing the finding of the trial court
that Matilde Orubia was not physically present when the will, Exhibit "F" was
allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.

VII.   The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed.

VIII.  The Court of Appeals erred in holding that the grave contradictions, evasions,
and misrepresentations of witnesses (subscribing and notary) presented by the
petitioner had been explained away, and that the trial court erred in rejecting said
testimonies.

IX.    The Court of Appeals acted in excess of its appellate jurisdiction or has so far
departed from the accepted and usual course of judicial proceedings, as to call
for an exercise of the power of supervision.

X.    The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially
factual in character and content.  Hence, at the very outset, We must again state the oft-
repeated and well-established rule that in this jurisdiction, the factual findings of the
Court of Appeals are not reviewable, the same being binding and conclusive on this
Court.  This rule has been stated and reiterated in a long line of cases enumerated in Chan
vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743)  and Tapas vs. CA (L-22202,
[12]

February 27, 1976, 69 SCRA 393),  and in the more recent cases

[13]

of Baptista vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217)

and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976,
74 SCRA 83, 88).  In the case of Chan vs. CA, this Court said:

"x x x from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then

Justice Recto, it has been well-settled that the jurisdiction of this Court in cases brought
to us from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive.  More specifically, in a decision
exactly a month later, this Court, speaking through the then Justice Laurel, it was held
that the same principle is applicable, even if the Court of Appeals was in disagreement
with the lower court as to the weight of the evidence with a consequent reversal of its
findings of fact.  x x x"

Stated otherwise, findings of facts by the Court of Appeals, when supported by

substantive evidence are not reviewable on appeal by certiorari.  Said findings of the
appellate court are final and cannot be disturbed by Us particularly because its premises
are borne out by the record or based upon substantial evidence and what is more, when
such findings are correct.  Assignments of errors involving factual issues cannot be
ventilated in a review of the decision of the Court of Appeals because only legal
questions may be raised.  The Supreme Court is not at liberty to alter or modify the facts
as set forth in the decision of the Court of Appeals sought to be reversed.  Where the
findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny
by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary.  The general rule We have thus stated above is not without some recognized
exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to
consider petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law
when there was absolutely no proof that the three instrumental witnesses were credible
witnesses.  She argues that the requirement in Article 806, Civil Code, that the witnesses
must be credible is an absolute requirement which must be complied with before an
alleged last will and testament may be admitted to probate and that to be a credible
witness, there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and
reliable.  According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered.  Petitioner contends that the
term "credible" is not synonymous with "competent" for a witness may be competent
under Article 820 and 821 of the Civil Code and still not be credible as required by
Article 805 of the same Code.  It is further urged that the term "credible" as used in the
Civil Code should receive the same settled and well-known meaning it has under the
Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wills with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error.  Article 820 of the Civil Code
provides the qualifications of a witness to the execution of wills while Article 821 sets
forth the disqualification from being a witness to a will.  These Articles state:

"Art. 820.  Any person of sound mind and of the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and write, may be a witness to the execution of a
will mentioned in article 805 of this Code.
"Art. 821.  The following are disqualified from being witnesses to a will:

(1)   Any person not domiciled in the Philippines;

(2)   Those who have been convicted of falsification of a document, perjury

or false testimony."

Under the law, there is no mandatory requirement that the witness testify initially or at
any time during the trial as to his good standing in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness in order that his testimony
may be believed and accepted by the trial court.  It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied with, such that the soundness
of his mind can be shown by or deduced from his answers to the questions propounded to
him, that his age (18 years or more) is shown from his appearance, testimony, or
competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and
that he is able to read and write to the satisfaction of the Court, and that he has none of
the disqualifications under Article 821 of the Civil Code.  We reject petitioner's
contention that it must first be established in the record the good standing of the witness
in the community, his reputation for trustworthiness and reliableness, his honesty and
uprightness, because such attributes are presumed of the witness unless the contrary is
proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in
the Civil Code should be given the same meaning it has under the Naturalization Law
where the law is mandatory that the petition for naturalization must be supported by two
character witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness.  The two witnesses in a
petition for naturalization are character witnesses in that being citizens of the Philippines,
they personally know the petitioner to be a resident of the Philippines for the period of
time required by the Act and a person of good repute and morally irreproachable and that
said petitioner has in their opinion all the qualifications necessary to become a citizen of
the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they
merely attest the execution of a will or testament and affirm the formalities attendant to
said execution.  And We agree with the respondent that the rulings laid down in the cases
cited by petitioner concerning character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under the Civil Code of
the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible
is satisfactorily supported by the evidence as found by the respondent Court of Appeals,
which findings of fact this Tribunal is bound to accept and rely upon.  Moreover,
petitioner has not pointed to any disqualification of any of the said witnesses, much less
has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or
dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person 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.  While the petitioner submits that Article 820 and 821 of the
New Civil Code speak of the competency of a witness due to his qualifications under the
first Article and none of the disqualifications under the second Article, whereas Article
805 requires the attestation of three or more credible witnesses, petitioner concludes that
the term credible requires something more than just being competent and, therefore, a
witness in addition to being competent under Articles 820 and 821 must also be a
credible witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one.  She
exacerbates that there is no evidence on record to show that the instrumental witnesses
are credible in themselves, that is, that they are of good standing in the community since
one was a family driver by profession and the second the wife of the driver, a
housekeeper.  It is true that Celso Gimpaya was the driver of the testatrix and his wife
Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix.  But the relation of employer and employee much less the
humble social or financial position of a person do not disqualify him to be a competent
testamentary witness.  (Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo Off. Gaz., March 18, 1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820
of the same Code, this being obvious from that portion of Article 820 which says "may be
a witness to the execution of a will mentioned in Article 805 of this Code," and cites
authorities that the word "credible" insofar as witnesses to a will are concerned simply
means "competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that "Granting that a will was duly executed and that it was in existence at the
time of, and not revoked before, the death of the testator, still the provisions of the lost
will must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon
hearsay." (underscoring supplied).

In Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court

held that "Section 620 of the same Code of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and
able to read and write, may be a witness to the execution of a will.  This same provision
is reproduced in our New Civil Code of 1950, under Art. 820.  The relation of employer
and employee, or being a relative to the beneficiary in a will, does not disqualify one to
be a witness to a will.  The main qualification of a witness in the attestation of wills, if
other qualifications as to age, mental capacity and literacy are present, is that said witness
must be credible, that is to say, his testimony may be entitled to credence.  There is a long
line of authorities on this point, a few of which We may cite:

"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime,
or other cause.  Historical Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134
Am. St. Rep. 1010" (Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competent
witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p.
341).
"Expression 'credible witness' in relation to attestation of wills means 'competent
witness'; that is, one competent under the law to testify to fact of execution of
will.  Vernon's Ann. Civ. St. 8283.  Moos vs. First State Bank of Uvalde, Tex. Civ. App.
60 S.W. 2d 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the will,
are legally competent to testify, in a court of justice, to the facts attested by subscribing
the will, the competency being determined as of the date of the execution of the will and
not of the time it is offered for probate.  Smith vs. Goodell, 101 N.E. 255, 256,
258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competent witnesses
-- that is, such persons as are not legally disqualified from testifying in courts of justice,
by reason of mental incapacity, interest, or the commission of crimes, or other cause
excluding them from testifying generally, or rendering them incompetent in respect of the
particular subject matter or in the particular suit.  Hill vs. Chicago Title & Trust Co., 152
N.E. 545, 546, 322 III. 42." (Ibid. p. 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is

determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility
depends on the appreciation of his testimony and arises from the belief and conclusion of
the Court that said witness is telling the truth.  Thus, in the case of Vda. de Aroyo v.
El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme
Court held and ruled that:  "Competency as a witness is one thing, and it is another to be
a credible witness, so credible that the Court must accept what he says.  Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but
may thereafter decide whether to believe or not to believe his testimony."

In fine, We state the rule that the instrumental witnesses in order to be competent must be
shown to have the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is worthy
of belief and entitled to credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or that they are honest
and upright or reputed to be trustworthy and reliable, for a person is presumed to be such
unless the contrary is established otherwise.  In other words, the instrumental witnesses
must be competent and their testimonies must be credible before the court allows the
probate of the will they have attested.  We, therefore, reject petitioner's position that it
was fatal for respondent not to have introduced prior and independent proof of the fact
that the witnesses were "credible witnesses", that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors,
petitioner disputes the findings of fact of the respondent court in finding that the
preparation and execution of the will was expected and not coincidental, in finding that
Atty. Paraiso was not previously furnished with the names and residence certificates of
the witnesses as to enable him to type such data into the document Exhibit "F", in holding
that the fact that the three typewritten lines under the typewritten words "pangalan" and
"tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion, in holding credible that Isabel Gabriel could have dictated
the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the
trial court gave undue importance to the picture takings as proof that the will was
improperly executed, and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary) presented by the petitioner
had been explained away.

Since the above errors are factual, We must repeat what We have previously laid down
that the findings of fact of the appellate court are binding and controlling which We
cannot review, subject to certain exceptions which We will consider and discuss
hereinafter.  We are convinced that the appellate court's findings are sufficiently justified
and supported by the evidence on record.  Thus, the alleged unnaturalness characterizing
the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without
previous appointment for the preparation and execution of the will and that it was
coincidental that Atty. Paraiso was available at the moment impugns the finding of the
Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of
her companions to his office on April 15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was available for any business transaction
on that day and that Isabel Gabriel had earlier requested him to help her prepare her
will.  The finding of the appellate court is amply based on the testimony
of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was
going to witness the making of her will, as well as the testimony of Maria Gimpaya that
she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which
was nearby and from said house, they left in a car to the lawyer's office, which
testimonies are recited in the respondent Court's decision.

The respondent Court further found the following facts:  that Celso Gimpaya and his wife
Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was
executed.  Celso Gimpaya's residence certificate No. A-5114942 was issued
at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-
5114974 was issued also at Navotas, Rizal on April 14, 1961.  The respondent Court
correctly observed that there was nothing surprising in these facts and that the securing of
these residence certificates two days and one day, respectively, before the execution of
the will on April 15, 1961, far from showing an amazing coincidence, reveals that the
spouses were earlier notified that they would be witnesses to the execution of Isabel
Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of
Atty. Paraiso was planned by the deceased, which conclusion was correctly drawn from
the testimony of the Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they proceeded by car
to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the
three witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed
for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso that previous to the day
that the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her
in the execution of her will and that he told her that if she really wanted to execute her
will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be
her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician
notwithstanding the fact that he believed her to be of sound and dispositive mind.  From
this evidence, the appellate court rightly concluded, thus:  "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with
the names and residence certificates of the witnesses as to enable him to type such data
into the document Exhibit "F", which the petitioner assails as contradictory and
irreconcilable with the statement of the Court that Atty. Paraiso was handed a list
(containing the names of the witnesses and their respective residence certificates)
immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that
he received such list from Isabel Gabriel, We cannot agree with petitioner's
contention.  We find no contradiction for the respondent Court held that on the occasion
of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso and
that no such list was given the lawyer in any previous occasion or date prior to April 15,
1961.

But whether Atty. Paraiso was previously furnished with the names and residence
certificates of the witnesses on a prior occasion or on the very occasion and date in April
15, 1961 when the will was executed, is of no moment for such data appear in
the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to
by the witnesses on April 15, 1961 following the attestation clause duly executed and
signed on the same occasion, April 15, 1961.  And since Exhibit "F" is a notarial will
duly acknowledged by the testatrix and the witnesses before a notary public, the same is a
public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein
expressed.  It has in its favor the presumption of regularity.  To contradict all these, there
must be evidence that is clear, convincing and more than merely
preponderant.  (Yturalde vs. Azurin, 28 SCRA 407).  We find no such evidence pointed
by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same
occasion merits Our approval because this conclusion is supported and borne out by the
evidence found by the appellate court, thus:  "On page 5 of Exhibit "F", beneath the
typewritten words "names", "Res. Tax Cert.", "date issued" and "place issued" the only
name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued
on February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the
names, residence tax certificate numbers, dates and places of issuance of said certificates
pertaining to the three (3) witnesses were personally handwritten by
Atty. Paraiso.  Again, this coincides with Atty. Paraiso's testimony that he had earlier
advised Isabel Gabriel to bring with her at least the Mayor and a Councilor
of Navotas, Rizal to be her witnesses for he did not know beforehand the identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on
April 15, 1961.  Atty. Paraiso's claim--which was not controverted that he wrote down in
his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt
that he prepared and ratified the will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that
Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document to
Atty. Paraiso as against the contention of petitioner that it was incredible.  This ruling of
the respondent court is fully supported by the evidence on record as stated in the decision
under review, thus:  "Nothing in the record supports the trial court's unbelief that Isabel
Gabriel dictated her will without any note or document to Atty. Paraiso.  On the contrary,
all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to
Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had
no note or document.  This fact jibes with the evidence--which the trial court itself
believed was unshaken--that Isabel Gabriel was of sound disposing memory when she
executed her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite
simple.  The first was Isabel Gabriel's wish to be interred according to Catholic rites; the
second was a general directive to pay her debts if any; the third provided for
P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother
Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces
including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth
was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the
remainder of her estate which she willed in favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to anyone except in extreme situations in which
even the sale must be made to close relatives; and the seventh was the appointment of the
appellant Santiago as executrix of the will without bond.  The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates
of title were only supplied by Atty. Paraiso."

It is true that in one disposition, the numbers of the Torrens titles of the properties
disposed and the docket number of a special proceeding are indicated which
Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends
that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without
any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and
sickly woman more than eighty-one years old and had been suffering from a brain injury
caused by two severe blows at her head and died of terminal cancer a few weeks after the
execution of Exhibit "F".  While We can rule that this is a finding of fact which is within
the competency of the respondent appellate court in determining the testamentary
capacity of the testatrix and is, therefore, beyond Our power to revise and review, We
nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix
dictated her will without any note or memorandum appears to be fully supported by the
following facts or evidence appearing on record.  Thus, Isabel Gabriel, despite her age,
was particularly active in her business affairs as she actively managed the affairs of the
movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death.  She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as co-administratrix in the Intestate Estate of her deceased
husband Eligio Naval.  The text of the will was in Tagalog, a dialect known and
understood by her and in the light of all the circumstances, We agree with the respondent
Court that the testatrix dictated her will without any note or memorandum, a fact
unanimously testified to by the three attesting witnesses and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit.  The evidence, both

testimonial and documentary is, according to the respondent court, overwhelming
that Matilde Orobia was physically present when the will was signed on April 15, 1961
by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya.  Such
factual finding of the appellate court is very clear, thus:  "On the contrary, the record is
replete with proof that Matilde Orobia was physically present when the will was signed
by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya.  The trial court's conclusion that Orobia's admission that she gave piano
lessons to the child of the appellant on Wednesdays and Saturdays and that April 15,
1961 happened to be a Saturday for which reason Orobia could not have been present to
witness the will on that day--is purely conjectural.  Witness Orobia did not admit having
given piano lessons to the appellant's child every Wednesday and Saturday without
fail.  It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano
lessons on that day for which reason she could have witnessed the execution of the
will.  Orobia spoke of occasions when she missed giving piano lessons and had to make
up for the same.  Anyway, her presence at the law office of Atty. Paraiso was in the
morning of April 15, 1961 and there was nothing to preclude her from giving piano
lessons on the afternoon of the same day in Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and

Maria Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages of the will,
the documentary evidence which is the will itself, the attestation clause and the nota-
rial acknowledgment overwhelmingly and convincingly prove such fact
that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the
will by signing her name thereon and acknowledged the same before the notary public,
Atty. Cipriano P. Paraiso.  The attestation clause which Matilde Orobia signed is the best
evidence as to the date of signing because it preserves in permanent form a recital of all
the material facts attending the execution of the will.  This is the very purpose of the
attestation clause which is made for the purpose of preserving in permanent form, a
record of the facts attending the execution of the will, so that in case of failure in the
memory of the subscribing witnesses, or other casualty they may still be
proved.  (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding
that the trial court gave undue importance to the picture-takings as proof that the will was
improperly executed, We agree with the reasoning of the respondent court
that:  "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary
to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that
the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse
of time.  The law does not require a photographer for the execution and attestation of the
will.  The fact that Miss Orobia mistakenly identified the photographer as Cesar Mendoza
scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly
portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya and Maria Gimpaya,
Isabel Gabriel and Atty. Paraiso." Further, the respondent Court correctly held:  "The trial
court gave undue importance to the picture-takings, jumping therefrom to the conclusion
that the will was improperly executed.  The evidence, however, heavily points to only
one occasion of the execution of the will on April 15, 1961 which was witnessed
by Matilde Orobia, Celso Gimpaya and Maria Gimpaya.  These witnesses were quite
emphatic and positive when they spoke of this occasion.  Hence, their identification of
some photographs wherein they all appeared along with Isabel Gabriel and
Atty. Paraiso was superfluous."

 Continuing, the respondent Court declared:  "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya.  But this was explained by
Atty. Paraiso as a reenactment of the first incident upon the insistence of Isabel
Gabriel.  Such reenactment where Matilde Orobia was admittedly no longer present was
wholly unnecessary if not pointless.  What was important was that the will was duly
executed and witnessed on the first occasion on April 15, 1961," and We agree with the
Court's rationalization in conformity with logic, law and jurisprudence which do not
require picture-taking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of

witnesses in their respective testimonies before the trial court.  On the other hand, the
respondent Court of Appeals held that said contradictions, evasions and
misrepresentations had been explained away.  Such discrepancies as in the description of
the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big
letters which are of the type in which the will was typewritten but which was identified
by witness Jolly Bugarin of the N.B.I. as "pica", the mistake in mentioning the name of
the photographer by Matilde Orobia to be Cesar Mendoza when actually it was
Benjamin Cifra, Jr.-- these are indeed unimportant details which could have been affected
by the lapse of time and the treachery of human memory such that by themselves would
not alter the probative value of their testimonies on the true execution of the will,
(Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of
every person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details.  Human experience
teach us "that contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith.  Inasmuch as not all those who witness an
incident are impressed in like manner, it is but natural that in relating their impressions,
they should not agree in the minor details; hence the contradictions in their testimony."
(Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position
to weigh and evaluate the evidence presented in the course of the trial.  As a general rule,
petitioner is correct but it is subject to well-established exceptions.  The right of the Court
of Appeals to review, alter and reverse the findings of the trial court where the appellate
court, in reviewing the evidence has found that facts and circumstances of weight and
influence have been ignored and overlooked and the significance of which have been
misinterpreted by the trial court, cannot be disputed.  Findings of facts made by trial
courts particularly when they are based on conflicting evidence whose evaluation hinges
on questions of credibility of contending witnesses lies peculiarly within the province of
trial courts and generally, the appellate court should not interfere with the same.  In the
instant case, however, the Court of Appeals found that the trial court had overlooked and
misinterpreted the facts and circumstances established in the record.  Whereas the
appellate court said that "Nothing in the record supports the trial court's unbelief that
Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the
trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the
alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a
conclusion based not on facts but on inferences; that the trial court gave undue
importance to the picture-takings, jumping therefrom to the conclusion that the will was
improperly executed and that there is nothing in the entire record to support the
conclusion of the court a quo that the will-signing occasion was a mere coincidence and
that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing
of her will, then it becomes the duty of the appellate court to reverse findings of fact of
the trial court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment
of the Court of Appeals is conclusive as to the facts and cannot be reviewed by the
Supreme Court.  Again We agree with the petitioner that among the exceptions are:  (1)
when the conclusion is a finding grounded entirely on speculations, surmises or
conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3)
when there is a grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the
Court of Appeals, in making its findings, went beyond the issues of the case and the same
is contrary to the admissions of both appellant and appellee.  (Roque vs. Buan, et
al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-
22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G. R. No. L-19570, Sept. 14, 1967).

Petitioner's insistence is without merit.  We hold that the case at bar does not fall within
any of the exceptions enumerated above.  We likewise hold that the findings of fact of the
respondent appellate court are fully supported by the evidence on record.  The
conclusions are fully sustained by substantial evidence.  We find no abuse of discretion
and We discern no misapprehension of facts.  The respondent Court's findings of fact are
not conflicting.  Hence, the well-established rule that the decision of the Court of Appeals
and its findings of fact are binding and conclusive and should not be disturbed by this
Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation.  The above holding simply synthesizes the
resolutions We have heretofore made in respect to petitioner's previous assignments of
error and to which We have disagreed and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find

the respondent Court acted properly and correctly and has not departed from the accepted
and usual course of judicial proceedings as to call for the exercise of the power of
supervision by the Supreme Court, and as We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to probate Exhibit "F", the last will
and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of
the evidence on record is unassailable that:  "From the welter of evidence presented, we
are convinced that the will in question was executed on April 15, 1961 in the presence
of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same
in the presence of each other as required by law." Specifically, We affirm that on April
15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and
his wife Maria Gimpaya, and a photographer proceeded in a car to the office of
Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day;
that on the way, Isabel Gabriel obtained a medical certificate from one
Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told
the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the
dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that
Atty. Paraiso read back to her what he wrote as dictated and she affirmed their
correctness; the lawyer then typed the will and after finishing the document, he read it to
her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at
the end of the will in the presence of the three
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand
margin of each and every page of the document in the presence also of the said three
witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end
of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the
document in the presence of Isabel Gabriel and the other two
witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will
at the bottom of the attestation clause and at the left-hand margin of the other pages of the
document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that
Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at
the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the
will as Notary Public, entering the will as Doc. No. 458, Page No. 94, Book No. IV,
Series of 1961, in his Notarial Register.  On the occasion of the execution and attestation
of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the
testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H",
showing Matilde Orobia signing the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table.  Atty. Paraiso, after
finishing the notarial act, then delivered the original to Isabel Gabriel and retained the
other copies for his file and notarial register.  A few days following the signing of the
will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of
Atty. Paraiso and told the lawyer that she wanted another picture taken because the first
picture did not turn out good.  The lawyer told her that this cannot be done because the
will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated
signing was performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the

witnesses for the proponent of the will, their alleged evasions, inconsistencies and
contradictions.  But in the case at bar, the three instrumental witnesses who constitute the
best evidence of the will-making have testified in favor of the probate of the will.  So has
the lawyer who prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it.  All of them are disinterested witnesses who stand to
receive no benefit from the testament.  The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much
less the petitioner, that they were not genuine.  In the last and final analysis, the herein
conflict is factual and We go back to the rule that the Supreme Court cannot review and
revise the findings of fact of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.

SO ORDERED.

[ G.R. No. 21755, December 29, 1924 ]

IN THE MATTER OF THE TESTATE ESTATE OF ANTONIO MOJAL,
DECEASED. FILOMENA NAYVE, PETITIONER AND APPELLEE, VS.
LEONA MOJAL AND LUCIANA AGUILAR, OPPONENTS AND
APPELLANTS.

DECISION

ROMUALDEZ, J.:

This is a proceeding for the probate of the will of the deceased Antonio Mojal, instituted
by his surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal and
Luciana Aguilar, sister and niece, respectively, of the deceased.

The Court of First Instance of Albay, which tried the case, overruled the objections to the
will, and ordered the probate thereof, holding; that the document in controversy was the
last will and testament of Antonio Mojal, executed in accordance with law. From this
judgment the opponents appeal, assigning error to the decree of the court allowing the
will to probate and overruling their opposition.

The will in question, Exhibit A, is composed of four sheets with written matter on only
one side of each, that is, four pages written on four sheets. The four sides or pages
containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively.
Each of the first two sides or pages, which was used, was signed by the testator and the
three witnesses on the margin, left side of the reader. On the third page actually used, the
signatures of the three witnesses appear also on, the margin, left side of the reader, but
the signature of the testator is not on the margin, but about the middle of the page, at the
end of the will and before the attestation clause. On the fourth page, the signatures of the
witnesses do not appear on the margin, but at the bottom of the attestation clause, it being
the signature of the testator that is on the margin, left side of the reader.

The defects attributed to the will are:

(a) The fact of not having been signed by the testator and the witnesses on each and every
sheet on the left margin; (b) the fact of the sheets of the document not being paged with
letters; (c) the fact that the attestation clause does not state the number of sheets or pages
actually used of the will; and (d) the fact that the testator does not appear to have signed
all the sheets in the presence of the three witnesses, and the latter to have attested and
signed all the sheets in the presence of the testator and of each other.

As to the signatures on the margin, it is true, as above stated, that the third page actually
used was signed by the testator, not on the left margin, as it was by the witnesses, but
about the middle of the page and at the end of the will; and that the fourth page was
signed by the witnesses, not on the left margin, as it was by the testator, but about the
middle of the page and at the end of the attestation clause.

In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42
Phil., 145), is applicable, wherein the will in question was signed by the testator and the
witnesses, not on the left, but right, margin. The rule laid down in that case is that the
document contained the necessary signatures on each page, whereby each page of the will
was authenticated and safeguarded against any possible alteration. In that case, the
validity of the will was sustained, and consequently it was allowed to probate.

Applying that doctrine to the instant case, we hold that, as each and every page used of
the will bears the signatures of the testator and the witnesses, the fact that said signatures
do not all appear on the left margin of each page does not detract from the validity of the
will.

Turning to the second defect alleged, that is to say, the fact that the sheets of the
document are not paged with letters, suffice it to cite the case of Unson vs. Abella (43
Phil., 494), where this court held that paging with Arabic numerals and not with letters,
as in the case before us, is within the spirit of the law and is just as valid as paging with
letters.

As to the proposition that the attestation clause does not state the number of sheets or
pages of the will, which is the third defect assigned, it must be noted that the last
paragraph of the will here in question and the attestation clause, coming next to-it, are of
the following tenor:

"In witness whereof, I set my hand unto this will here in the town of Camalig, Albay,
Philippine Islands, this 26th day of November, nineteen hundred and eighteen, composed
of four sheets, including the next:

"ANTONIO MOJAL
"(Signed and declared by the testator Don Antonio Mojal to be his last will and testament
in the presence of each of us, and at the request of said testator Don Antonio Mojal, we
signed this will in the presence of each other and of the testator.)

"PEDRO CARO
"SILVERIO MORCO
"ZOILO MASINAS"

As may be seen, the number of sheets is stated in said last paragraph of the will. It is true
that in the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the
attestation clause must state the number of sheets or pages composing the will; but when,
as in the case before us, such fact, while it is not stated in the attestation clause, appears
at the end of the will proper, so that no proof aliunde is necessary of the number of the
sheets of the will, then there can be no doubt that it complies with the intention of the law
that the number of sheets of which the will is composed be shown by the document itself,
to prevent the number of the sheets of the will from being unduly increased or decreased.

With regard to the last defect pointed out, namely, that the testator does not appear to
have signed on all the sheets of the will in the presence of the three witnesses, and the
latter to have attested and signed on all the sheets in the presence of the testator and of
each other, it must be noted that in the attestation clause above set out it is said that the
testator signed the will "in the presence of each of the witnesses" and the latter signed "in
the presence of each other and of the testator." So that, as to whether the testator and the
attesting witnesses saw each other sign the will, such a requirement was clearly and
sufficiently complied with. What is not stated in this clause is whether the testator and the
witnesses signed all the sheets of the will.

The act of the testator and the witnesses seeing reciprocally the signing of the will is one
which cannot be proven by the mere exhibition of the will unless it is stated in the
document. And this fact is expressly stated in the attestation clause now before us. But
the fact of the testator and the witnesses having signed all the sheets of the will may be
proven by the mere examination of the document, although it does not say anything about
this, and if that is the fact, as it is in the instant case, the danger of fraud in this respect,
which is what the law tries to avoid, does not exist.

Therefore, as in the instant case the fact that the testator and the witnesses signed each
and every page of the will is proven by the mere examination of the signatures in the will,
the omission to expressly state such evident fact does not invalidate the will nor prevent
its probate.

The order appealed from is affirmed with the costs against the appellants. So ordered.

[ G.R. No. 15025, March 15, 1920 ]

 IN THE MATTER OF THE ESTATE OF REMIGIA SAGUINSIN,
DECEASED. ARCADIO DEL ROSARIO, APPLICANT AND APPELLANT,
JOSE A. DEL PRADO ET AL., LEGATEES ANCI APPELLANTS, VS.
RUFINA SAGUINSIN, OPPONENT AND APPELLEE.

DECISION

ARELLANO, C.J.:

There was presented in the Court of First Instance of the city of Manila for allowance an
instrument which the petitioner calls the will of Remigia Saguinsin. It is a manuscript
signed by the alleged testatrix and three witnesses on October 3, 1918, the conclusion of
which says: "I, the testatrix, sign in the presence of the witnesses this will written by D.
Lino Mendoza at my request and under my direction." (Yo, la testadora, firmo en
presencia de los testigos este testamento que ha escrito D. Lino Mendoza a mi ruego y
bajo mi direccion.)—Then follows a signature and then these expressions: "The testatrix
signed in our presence and each of us signed in the presence of the others." (La testadora
ha firmado en nuestra presencia y cada uno de nosotros en presencia de los demas.)
—"Witness who wrote this will at the request and under the free and voluntary personal
direction of the testatrix herself." (Testigo que escribio este testamento a ruego y bajo la
libre y voluntaria direccion personal de la misma testadora.) (Sgd.) Lino Mendoza
—"Attesting witnesses." (Testigos del testamento.) Then come three signatures.

These three signatures together with that of the alleged testatrix are written also on the
left margin of the first page or folio and on the third page or second folio, but not on the
second page or reverse side of the first page where, as is seen, the manuscript is
continued, the second folio not containing anything but the date and the end of the
manuscript.

Under these conditions the instrument was -impugned by a sister of the alleged testatrix
and after the taking of the declaration of the authors of the signatures which appear three
times and in different parts of the manuscript, the court declared that the document
attached to the record could not be allowed as a will.

Certain persons who allege themselves to be legatees appealed jointly with the lawyer for
the petitioner.

And upon considering the case on appeal, this court decides:

That, in conformity with Act No. 2645, amendatory to section 618 of the Code of Civil
Procedure, the concluding part of the will does not express what that law, under pain of
nullity, requires. Section 618, as amended, says: "The attestation shall state the number of
sheets or pages used upon which the will is written * * *." None of these requirements
appear in the attesting clause at the end of the document presented. The second page, i. e.,
what is written on the reverse side of the first, engenders the doubt whether what is
written thereon was ordered written by the alleged testatrix or was subsequently added by
the same hand that drew the first page and the date that appears on the third. With this
non-fulfillment alone of Act No. 2645 it is impossible to allow the so-called will which
violates said law.

That besides this violation there is another as evident as the preceding. Said Act No. 2645
provides: "The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall also sign, as aforesaid, each and every page
thereof, on the left margin, and said pages shall be numbered correlatively in letters
placed on the upper part of each sheet." The English text differs from the Spanish text:
the former says only pages (paginas) while the latter puts (hojas). "Hoja," according to
the Diccionario de la Academia, "is with respect to books or notebooks folio." According
to the same dictionary "pagina (page) is each one of the two faces or planes of the leaf of
a book or notebook: that which is written or printed on each page, for example I have
read only two pages of this book." Two pages constitute one leaf. One page represents
only one-half of one leaf. The English text requires that the signature which guarantees
the genuineness of the testament shall be placed on the left hand margin of each page and
that each page should be numbered by letter in the upper part This requirement is entirely
lacking on the second page that is, on the reverse side of the first. According to the old
method of paging "folio 1. y su uto." that is, first folio and the reverse side, should have
been stated, and the second page would then have been included in the citation. By the
failure to comply with this, requisite the law has been obviously violated. In the English
texi the word "pages" does not leave any room for doubt and i1 is invariably used in the
text of the law, whereas in the Spanish text, "hoja" and "pagina" are used indifferently as
may be seen in the following part which says: "El atestiguamiento hara constar el numero
de hojas o paginas utiles en que esta extendido el testamento." This failure to comply
with the law also vitiates the will and invalidates it, as the second page is lacking in
authenticity.

This is a defect so radical that there is no way by which what is written on the reverse
side of the first folio may be held valid. It is possible that this document consists of only
the two folios numbered 1 and 2, and that on the reverse side of number 1 nothing may
have been written upon the order of the testatrix, the testament ending at the foot of the
first folio with the legacy "To my nephew Catalino Ignacio, P200" (A mi sobrino
Catalino Ignacio doscientos pesos) and from that part then immediately follows folio No.
2—"Manila a tres de Octubre de mil novecientos diez y ocho—Yo la testadora firmo en
presencia etc." (Manila, October 3, 1918.—I, the testatrix, sign in the presence of etc.)
There is nothing which guarantees all the contents of page 2. The margin of this page is
absolutely blank. There is nothing which gives the assurance that the testatrix ordered the
insertion of all the contents of page 2. It may very well be that it was subsequently added
thereby substituting the will of the testatrix, a result for the prevention of which this
manner of authenticity by affixing the signature on each page and not merely on each
folio was provided for by law. This defect is radical and totally vitiates the testament. It is
not enough that the signatures guaranteeing authenticity should appear upon two folios or
leaves; three pages having been written, the authenticity of all three of them should be
guaranteed with the signatures of the alleged testatrix and her witnesses. The English text
which requires the signing of pages and not merely leaves or folios should prevail. It is so
provided in section 15 of the Administrative Code (Act No. 2711).

The judgment appealed from is affirmed, with costs of thin instance against the appellant.

[ G.R. No. 21151, February 25, 1924 ]

IN RE WILL OF ANTONINO VERGEL DE DIOS, DECEASED.
RAMON J. FERNANDEZ, PETITIONER AND APPELLANT,
HERMELO VERGEL DE DIOS AND SEVERINA JAVIER,
LEGATEES AND APPELLANTS, VS. FERNANDO VERGEL DE
DIOS ET AL., OPPONENTS AND APPELLEES.

DECISION

ROMUALDEZ, J.:

The question in this case is as to the validity of the document Exhibit A as a will, which was
propounded by Ramon J. Fernandez for probate, and contested by Fernando Vergel de Dios and
Francisco, Ricardo and Virgilio Rustia, the Court of First Instance of Manila having denied its
probate.

The applicant takes this appeal, assigning error to the action of the lower court in holding the
attestation fatally defective and in not finding Act No. 2645 void. The defects attributed to the
will by the contestants are as follows, to wit:

(a) It was not sufficiently proven that the testator knew the contents of the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the testator, or of each other, nor with
knowledge on the part of the testator that they were signing his will.
(f) The witnesses did not sign the attestation clause before the death of the testator.
(g) This clause was written after the execution of the dispositive part of the will and was
attached to the will after the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are not authentic.

The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the testator, the
latter's mind was perfectly sane and he understood it; that he signed all the pages of the will
proper, although he did not sign the page containing the attestation clause; that while he did not
personally call the witnesses, yet the latter were invited by Attorney Lopez Lizo to act as such in
his presence. The law does not require that the testator precisely be the person to request the
witnesses to attest his will. It was also sufficiently established in the record, besides being stated
in the attestation clause, that the testator signed the will in the presence of the three witnesses
and that the latter, in turn, signed it in the presence of the testator and of each other, the
testator knowing that the witnesses were signing his will; that the witnesses signed the
attestation clause before the death of the testator; that this clause, with the names of the
witnesses in blank, was prepared before the testator signed the will, and that the sheet
containing said clause, just as those of the will proper, was a loose sheet, and that all the four
sheets of which the will Exhibit A was actually composed were kept together and are the very
ones presented in this case; and finally, that the signatures of the testator on page 3 of said
exhibit are authentic.

It thus appearing from the record that there are no such defects as those mentioned by the
opponents, and it having been proven that the testator executed said will in a language known
by him and consciously, freely and spontaneously, it would seem unnecessary to go further, and
the matter might be brought to a close right here, by holding the will in question valid and
allowable to probate, were it not for the fact that the trial court and the opponents questioned
the sufficiency and validity of the attestation clause because the sheet on which it is written is
not numbered, and it is not stated there that the testator signed on the margin of each sheet of
the will in the presence of the three witnesses, or that the latter signed it in the presence of the
testator and of each other, and specially because said attestation clause is not signed by the
testator either at the margin or the bottom thereof. As to the numbering of the sheet containing
the attestation clause, it is true that it does not appear on the upper part of the sheet, but it
does appear in its text, the pertinent part of which is copied hereinafter, with the words, having
reference to the number of sheets of the will, underscored, including the page number of the
attestation:

"* * * We certify that the foregoing document written in Spanish, a language known by the
testator Antonino Vergel de Dios, consisting of three sheets actually used, correlatively
enumerated, besides this sheet * * *."

If, as stated in this clause, the foregoing document consists of  three sheets, besides that of the
clause itself, which is in singular, it is clear that such a sheet of the attestation clause is
the fourth and that the will, including said sheet, has four sheets. This description contained in
the clause in question constitutes substantial compliance with the requirements prescribed by the
law regarding the paging. So it was held by this Court in the case of Abangan vs. Abangan (40
Phil., 476), where the sheet containing the attestation, as well as the preceding one, was also
not paged.

Furthermore, the law, as we shall see later on, does not require that the sheet containing
nothing but the attestation clause, wholly or in part, be numbered or paged. Consequently this
lack of paging on the attestation sheet does not take anything from the validity of the will.

Turning now to the question whether or not in this clause it is stated that the testator signed on
the margin of each sheet of the will, in the presence of the witnesses and the latter in the
presence of each other, let us see what is said in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is as follows:

"* * * and he (the testator) signed at the bottom of the aforesaid will in our presence and we at
his request did the same in his presence and in that of each other as witnesses to the will, and
lastly, the testator, as well as we, as witnesses, signed in the same manner on the left margin of
each sheet." (Italics ours.)
The underscored phrase "in the same manner" cannot in the instant case mean, and it in fact
means nothing, but that the testator and the witnesses signed on the left margin of each sheet
of the will "in the same manner" in which they signed at the bottom thereof, that is, the testator
in the presence of the witnesses and the latter in the presence of the testator and of each other.
This phrase in the same manner cannot, in view of the context of the pertinent part, refer to
another thing, and was used here as a suppletory phrase to include everything and avoid the
repetition of a long and difficult one, such as what is meant by it. The same section 618 of the
Code of Civil Procedure, in order to avoid the repetition of the same long phrase about the
testator having signed in the presence of the witnesses and the latter in the presence of each
other, resorts to a similar expression in the second paragraph and says, "as aforesaid."

Concerning the absolute absence of the signature of the testator from the sheet containing the
attestation clause, this point was already decided in the above cited case of
Abangan vs. Abangan, where this court held that:

"The testator's signature is not necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the testator."

In that case of Abangan vs. Abangan it was held that the signature of the testator is not
necessary in the attestation clause, but the theory is not announced that such a clause is
unnecessary to the validity of the will.

For this reason such doctrine does not annul the judgment in the case of Uy Coque vs. Navas L.
Sioca (43 Phil., 405), where in effect the doctrine, among others, was laid down that the
attestation clause is necessary to the validity of the will. One of the points on which greatest
stress was laid in that case of Uy Coque is that the requirements of the law regarding the
number of the pages used, the signing of the will and of each of its pages by the testator in the
presence of three witnesses, and the attestation and signing of the will and of each of its pages
by the witnesses in the presence of each other cannot be proven aliunde but by the attestation
clause itself which must express the compliance of the will with such requirements. But it was
not held in that case of Uy Coque that the signature of the testator was necessary in the
attestation clause, nor was such point discussed there, which was the point at issue in the case
of Abangan vs. Abangan, supra.

The appellees, however, argue that such clause in the case of Abangan vs. Abangan begins at
the bottom and on the same sheet in which the testamentary provisions terminated, that is to
say, the will .properly speaking. Even then if it is intended to commit misrepresentation or fraud,
which are the things that with the requirements of the law for the making and attesting of wills it
is intended to avoid, it is just the same that the clause; as in the case of Abangan  vs. Abangan,
begins at the bottom of the will properly speaking, as, like the case before us, it is wholly
contained in a separate sheet. The fact is that this separate sheet, containing the attestation
clause wholly or in part, is not signed in any place by the testator in the case of
Abangan vs. Abangan, as it is not in the present case.

Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in general terms the requirements to be met by a will
executed after said Code took effect, to wit, that the language or dialect in which it is written be
known by the testator, that it be signed by the latter or by another person in the name of the
testator by his express direction and in his presence, and that it be attested and signed by three
or more credible witnesses in the presence of the testator and of each other.

These general rules are amplified in the next two paragraphs as to the special requirements for
the execution of the will by the testator and the signing thereof by the witnesses, with which the
second paragraph of the section deals, and as to the attestation clause treated in the third and
last paragraph of said section 618.

For this reason the second paragraph of this section 618 says:

"The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and
said pages shall be numbered correlatively in letters placed on the upper part of each sheet.

These are the solemnities that must surround the execution of the will properly speaking,
without any reference whatsoever to the attestation clause not treated in this second paragraph.
It is in this second paragraph which deals only with the will (without including the attestation
clause), that the signature or name of the testator and those of the witnesses are mentioned as
necessary on the left margin of each and everyone of the sheets of the will (not of the
attestation clause), as well as the paging of said sheets (of the will, and not of the attestation
clause which is not yet spoken of).

Now, are the signatures of the testator and the paging of the will also necessary in the
attestation clause? Let us see the last paragraph of this section 618 of the Code which already
deals with the requirements for the attestation clause. This last paragraph reads thus:

"The attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof in the presence of the testator and
of each other." As may be seen this last paragraph refers to the contents of the text of the
attestation, not the requirements or signatures thereof outside of its text. It does not require
that the attestation be signed by the testator or that the page or sheet containing it be
numbered.

From this analysis of our law now in force it appears:

First. That the will must have an attestation clause as a complement, without which it cannot be
probated and with which only and not aliunde (Uy Coque vs. Navas L. Sioca, supra) may the
requirements to be stated in its text be proven. The attestation clause must be prepared and
signed, as in the instant case, on the same occasion on which the will is prepared and signed, in
such a way that the possibility of fraud, deceit or suppression of the will or the attestation clause
be reduced to a minimum; which possibility always exists, as experience shows, in spite of the
many precautions taken by the legislator to insure the true and free expression of one's last will.

Second. That the will is distinct and different from the attestation, although both are necessary
to the validity of the will, similar, in our opinion, to a document which is not public so long as it is
not acknowledged before a notary, the document being a distinct and different thing from the
acknowledgment, each of which must comply with different requisites, among which is the
signature of the maker which is necessary in the document but not in the acknowledgment and
both things being necessary to the existence of the public document.

Third. That the will proper must meet the requirements enumerated in the second paragraph of
section 618 of the Code of Civil Procedure.

Fourth. That the text of the attestation clause must express compliance with the requirements
prescribed for the will.
In the case at bar the attestation clause in question states that the requirements prescribed for
the will were complied with, and this is enough for it, as such attestation clause, to be held as
meeting the requirements prescribed by the law for it.

The fact that in said clause the signature of the testator does not appear does not affect its
validity, for, as above stated, the law does not require that it be signed by the testator.

We find no merit in the assignment of error raising the question as to the validity of Act No.
2645, which is valid. For the purposes of this decision, it is not necessary to reason out this
conclusion, it being sufficient for the adjudication of this case to hold the first error assigned by
the appellants to have been demonstrated.

The foregoing conclusions lead us to hold, as we do here-by hold, that the document Exhibit A,
as the last will and testament of the deceased Antonino Vergel de Dios, meets all the
requirements prescribed by the law now in force and therefore it must be allowed to probate as
prayed for by the petitioner.

The judgment appealed from is reversed, and it is ordered that the lower court proceed with the
probate of the will Exhibit A in accordance with law, without express pronouncement as to costs.
So ordered.

[ G.R. No. L-18979, June 30, 1964 ]

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE, CELSO ICASIANO, PETITIONER AND APPELLEE, VS.
NATIVIDAD ICASIANO AND ENRIQUE ICASIANO, OPPOSITORS AND
APPELLANTS.

DECISION

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to

probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true
last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person named This special proceeding was begun on October 2, 1958 of
the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof. The court set the proving
of the alleged will for November 8, 1958, and caused notice thereof to be published for
three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
Chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust Company as special administrator.

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended and
supplemental petition, alleging that the decedent left a will executed in duplicate with all
the legal requirements, and that he was, on that date, submitting the signed duplicate
(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17,
1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition; and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the parties presented their respective
evidence, and after several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to this Court, the
amount involved being over P200,000.00, on the ground that the same is contrary to law
and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the
City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte
executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad, and
Dr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary
Public in and for the City of Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano, and a little girl. Of the said three instrumental witnesses to the execution
of the decedent's last will and testament attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorney Fermin Samson,
who actually prepared the document. The latter also testified upon cross examination that
he prepared one original and two copies of Josefa Villacorte's last will and testament at
his house in Baliuag, Bulacan, but he brought only one original and one signed copy to
Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously
with the filing of the petition and marked as Exhibit "A", consists of five pages, and
while signed at the end and in every page, it does not contain the signature of one of the
attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked as Exhibit "A-l" is
signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original, of
the will and its duplicate were subscribed at the end and on the left margin of each and
every page thereof by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three (3) of the original;
that pages of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited therein and is
signed by the aforesaid attesting witnesses; that the will is written in the language known
to and spoken by the testatrix; that the attestation clause is in a language also known to
and spoken by the witnesses; that the will was executed on one single occasion in
duplicate copies; and that both the original and the duplicate copy were duly
acknowledged before Notary Public Jose Oyengco Ong of Manila on the same date—
June 2, 1956.

Witness Natividad, who testified on his failure to sign page three (3) of the original,
admits that he may have lifted two pages instead of one when he signed the same, but
affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures
of the testatrix in the duplicate (Exhibit A-l) are not genuine, nor were they written or
affixed on the same occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and with undue influence
and pressure because the testatrix was deceived into adopting as her last will and
testament the wishes of those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the execution of the will
and the provisions and dispositions thereof, whereby proponents-appellees stand to profit
from properties held by them as attomeys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not to look for other
properties not mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies (Exhibits "A" and "A-l", respectively) of the
will spontaneously, on the same occasion, in the presence of the three attesting witnesses,
the notary public who acknowledged the will, and Atty. Samson, who actually prepared
the documents; that the will and its duplicate were executed in Tagalog, a language
known to and spoken by both the testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the testatrix and the
witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of
the testatrix appearing in the duplicate original were not written by the same hand, which
wrote the signatures in the original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents, but principally because
of the paucity of the standards used by him to support the conclusion that the differences
between the standard and questioned signatures are beyond the writer's range of normal
scriptural variation. The expert has, in fact, used as standards only three other signatures
of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion that the signatures in the duplicate could
not be those of the testatrix becomes extremely hazardous. This is particularly so since
the comparison charts Nos. 3 and 4 fail to show convincingly that there are radical
differences that would justify the charge of forgery, taking into account the advanced age
of the testatrix, the evident variability of her signatures, and the effect of writing fatigue,
the duplicate being signed right after the original. These factors were not discussed by the
expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering that standard and challenged
writings were affixed to different kinds of paper, with different surfaces and reflecting
power. On the whole, therefore, we do not find the testimony of the oppositor's expert
sufficient to overcome that of the notary and the two instrumental witnesses, Torres and
Natividad (Dr. Diy, being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs
are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs.
Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 216). Diversity of apportionment is the
usual reason for making a testament; otherwise, the decedent might as well die intestate.
The testamentary disposition that the heirs should not inquire into other property and that
they should respect the distribution made in the will, under penalty of forfeiture of their
shares in the free part, do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into the hands
of non-heirs and speculators. Whether these clauses are valid or not is a matter to be
litigated on another occasion. It is also well to note that, as remarked by the Court of
Appeals in Sideco vs. Sideco, 45 Off. Gaz. 163, fraud and undue influence are mutually
repugnant and probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the testatrix an two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had
no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed,
and the evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil vs. Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at
1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or
bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure
oversight is shown by his own testimony as well as by the duplicate copy of the will,
which bears a complete set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise evidence that no one was
aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application
of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court has held that a testament, with the only page
signed at its foot by testator and witnesses, but not in the left margin, could nevertheless
be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for
the correlative lettering of the pages of a will, the failure to mark the first page either by
letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents
exemplify the Court's policy to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of the
testamentary privilege.

The appellants also argue that since the original of the will is in existence and available,
the duplicate (Exh. A-l) is not entitled to probate. Since they opposed probate of the
original because it lacked one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma: if the original is defective and invalid,
then in law there is no other will but the duly signed If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that
the omission of one signature in the third page of the original testament was inadvertent
and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred by the
original publication of the petition for probate. The amended petition did not substantially
alter the one first filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the contents of
Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error in admitting the amended petition.

In view of the foregoing, the decision appealed from is affirmed, with costs against
appellants.

[ G.R. No. L-1787, August 27, 1948 ]

TESTACY OF SIXTO LOPEZ. JOSE S. LOPEZ, PETITIONER AND
APPELLEE, VS. AGUSTIN LIBORO, OPPOSITOR AND APPELLANT.

DECISION

TUASON, J.:

In the Court of First Instance of Batangas the appellant opposed unsuccessfully

the probate of what purports to be the last will and testament (Exh. "A") of Don Sixto
Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six
months after the document in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to wits (1) that the deceased never
executed the alleged will; (2) that his signature appearing in said will was a forgery; (3)
that at the time of the execution of the will, he was wanting in testamentary as well as
mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental witnesses
was incapacitated to act as such; and it was procured by duress, influence of fear and
threats and undue and improper pressure and influence on the part of the beneficiaries
instituted therein, principally the testator's sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by
fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words:
"That the court a quo erred in holding that the document Exhibit 'A' was executed in all
particulars as required by law". To this objection is added the alleged error of the court
"in allowing the petitioner to introduce evidence that Exhibit 'A' was written in a
language known to the decedent after petitioner rested his case and over the vigorous
objection of the oppositor."

The will in question comprises two pages, each of which is written on one side of a
separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This,
the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is to guard against fraud, and to
afford means of preventing the substitution or of detecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil. 476) In the present case, the omission to put a page
number on the first sheet, if that be necessary, is supplied by other forms of identification
more trustworthy than the conventional numeral words or characters. The unnumbered
page' is clearly identified as the first page by the internal sense of its contents considered
in relation to the contents of the second page. By their meaning and coherence, the first
and second lines on the second page are undeniably a continuation of the last sentence of
the testament, before the attestation clause, which starts at the bottom of the preceding
page. Furthermore, the unnumbered page contains the caption "TESTAMENTO", the
invocation of the Almighty, and a recital that the testator was in the full use of his
testamentary faculty, all of which, in the logical order of sequence, precede the direction
for the disposition of the maker's property. Again, as page two contains only the two lines
above mentioned, the attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other than page one.
Abangan vs. Abgangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are
decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the
matter of the credibility of the witnesses is assailed under this heading. On the merits we
do not believe that the appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set out in the
appellant's brief are incidents, not all of which every one of the witnesses can be
supposed to have perceived, or to recall in the same order in which they occured.

"Everyday life and the result of investigations made in the field of experimental
psychology show that the contradictions of witnesses generally occur in the details of a
certain incident, after a long series of questionings, and far from being an evidence of
falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness
an incident are impressed in like manner, it is but natural that in relating their impressions
they should not agree in the minor details; hence, the contradictions in their testimony."
(People vs. Limbo, 49 Phil. 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The
reason for this was that the testator was suffering from "partial paralysis". While another
in testator's place might have directed someone else to sign for him, as appellant contends
should have been done, there is nothing curious or suspicious in the fact that the testator
chose the use of mark as the means of authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil. 108; 28
R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the
trial court committed an abuse of discretion in allowing the appellant to offer evidence to
prove knowledge of Spanish by the testator, the language in which the will is drawn, after
the petitioner had rested his case and after the opponent had moved for dismissal of the
petition on the ground of insufficiency of evidence. It is within the discretion of the court
whether or not to admit further evidence after the party offering the evidence has rested,
and this discretion will not be reviewed except where it has clearly been abused. (64 C. J.,
160.) More, it is within the sound discretion of the court whether or not it will allow the
case to by reopened for the further introduction of evidence after' a motion or request for
a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has
announced its intention as to its ruling on the request, motion, or demurrer, or has granted
it or has denied the same, or after the motion has been granted, if the order has not been
written, or entered upon the minutes or signed.(64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their
respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling will not be disturbed in the appellate
court where no abuse of discretion appears. (Siuliong & Co. vs. Ylagan, 43 Phil. 393; U.
S. vs. Alviar, 36 Phil. 804.) So, generally, additional evidence is allowed when it is newly
discovered, or where it has been omitted through inadvertence or mistake, or where the
purpose of the evidence is to correct evidence previously offered. (I Moran's Comments
on the Rules of Court, 2nd ed., 545; 64 C. J., 160-163.) The ommission to present
evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its
silence on the testator's understanding of the language used in the testament. There ?is no
statutory requirement that such knowledge be expressly stated in the will itself. It is a
matter that may be Established by proof aliunde. This Court so impliedly ruled in
Gonzales vs. Laurel, 46 Phil. 781, in which the probate of a will written in Tagalog was
ordered although it did not say that the testator knew that idiom. In fact, there was not
even extraneous proof on the subject other than the fact that the testator resided in a
Tagalog region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect."
The order of the lower court ordering the probate of the last will and testament of Don
Sixto Lopez is affirmed, costs.

FIRST DIVISION
[ G.R. No. L-36033, November 05, 1982 ]
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL
OF DOROTEA PEREZ, (DECEASED): APOLONIO TABOADA,
PETITIONER, VS. HON. AVELINO S. ROSAL, AS JUDGE OF THE COURT
OF FIRST INSTANCE OF SOUTHERN LEYTE, (BRANCH III, MAASIN),
RESPONDENT.

DECISION

GUTIERREZ, JR., J.:

This is a petition for review of the orders issued by the Court of First Instance of
Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of
the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada,
Petitioner", which denied the probate of the will, the motion for reconsideration and
the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the testatrix alone and at the
left hand margin by the three (3) instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed at the end of the attestation
clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.

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

Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion ex parte praying for a thirty-day period within which to deliberate on any
step to be taken as a result of the disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of intestate heirs with their addresses be
held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the
will. However, the motion together with the previous manifestation and/or motion could
not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new
station at Pasig, Rizal. The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for the
appointment of special administrator was likewise denied because of the petitioner's
failure to comply with the order requiring him to submit the names of the intestate heirs
and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that
the testatrix and all the three instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides: 

"Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another. 

"The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page. 
"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 page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and the pages thereof in the
presence of the testator and of one another. 

"If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them."

The respondent Judge interprets the above-quoted provision of law to require 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.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic 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. He contends that 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.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed
at its end by the testator himself or by the testator's name written by another 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.

It must be noted that the law uses the terms attested and subscribed. 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. On the other hand, 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. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the
will in this case was subscribed in a manner which fully satisfies 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.

While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective

permeating the provisions on the law on wills in this project consists in the 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" ( Report of the Code Commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.

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.

We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. 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 Testatment consists of two pages
including this page".

In Singson v. Fiorentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used: 

"The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or sheets
upon which the will is written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission of same of the
pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas Sioca, 43 Phil.,
405; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481; Echevarria vs.
Sarmiento, 66 Phil., 611). The ratio decidendi of these cases seems to that the attestation
clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the attestation
clause does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by
purely technical considerations."

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach: 

"x x x Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on record attests to the full observance
of the statutory requisites. Otherwise, as stated in Vda. de Gil vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling
or bungling it or the attestation clause.'"

WHEREFORE , the present petition is hereby granted. The orders of the respondent
court which denied the probate of the will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special administrator are set aside. The
respondent court is ordered to allow the probate of the will and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED.

SECOND DIVISION
 [ G.R. No. 204793, June 08, 2020 ]
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL
OF CONSUELO SANTIAGO GARCIA

CATALINO TANCHANCO AND RONALDO TANCHANCO, PETITIONERS,

VS. NATIVIDAD GARCIA SANTOS, RESPONDENT.

DECISION

HERNANDO, J.:

This Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court assails the
June 25, 2012 Decision[2] and December 4, 2012 Resolution[3] of the Court of Appeals
(CA) in CA-G.R. CV No. 89593 which reversed the May 31, 2004 Decision[4] of Branch
115 of the Regional Trial Court (RTC) of Pasay City in Spec. Proc. Nos. 97-4243 and 97-
4244 denying the probate of the last will and testament of the decedent, Consuelo
Santiago Garcia (Consuelo).

The Antecedents

Consuelo was married to Anastacio Garcia (Anastacio) who passed away on August 14,
1985. They had two daughters, Remedios Garcia Tanchanco (Remedios) and Natividad
Garcia Santos (Natividad). Remedios predeceased Consuelo in 1985 and left behind her
children, which included Catalino Tanchanco (Catalino) and Ronaldo Tanchanco
(Ronaldo, collectively Tanchancos).[5]

On April 4, 1997, Consuelo, at 91 years old, passed away[6] leaving behind an estate

consisting of several personal and real properties.[7]

On August 11, 1997, Catalino filed a petition[8] before the RTC of Pasay City to settle the
intestate estate of Consuelo which was docketed as Spec. Proc. Case No. 97-4244 and
raffled to Branch 113. Catalino alleged that the legal heirs of Consuelo are: Catalino,
Ricardo, Ronaldo and Carmela, all surnamed Tanchanco (children of Remedios), and
Melissa and Gerard Tanchanco (issues of Rodolfo Tanchanco, Remedios' son who
predeceased her and Consuelo), and Natividad, the remaining living daughter of
Consuelo. Catalino additionally alleged that Consuelo's properties are in the possession of
Natividad and her son, Alberto G. Santos (Alberto), who have been dissipating and
misappropriating the said properties. Withal, Catalino prayed (1) for his appointment as
the special administrator of Consuelo's intestate estate and the issuance of letters of
administration in his favor; (2) for a conduct of an inventory of the estate; (3) for
Natividad and all other heirs who are in possession of the estate's properties to surrender
the same and to account for the proceeds of all the sales of Consuelo's assets made during
the last years of her life; (4) for all heirs and persons having control of Consuelo's
properties be prohibited from disposing the same without the court's prior approval; (5)
for Natividad to produce Consuelo's alleged will to determine its validity; (6) for
Natividad to desist from disposing the properties of Consuelo's estate; and (7) for other
reliefs and remedies.[9]

Natividad filed a Motion to Dismiss[10] stating that she already filed a petition[11] for the
probate of the Last Will and Testament of Consuelo before Branch 115 of the RTC of
Pasay City which was docketed as Spec. Proc. Case No. 97-4243. Natividad asked that
Consuelo's Last Will and Testament, entitled Huling Habilin at Pagpapasiya ni Consuelo
Santiago Garcia,[12] be allowed and approved. Moreover, as the named executrix in the
will, Natividad prayed that letters testamentary be issued in her favor.

The Tanchancos filed an Opposition[13] to Natividad's petition for probate alleging that the
will's attestation clause did not state the number of pages and that the will was written
in Tagalog, and not the English language usually used by Consuelo in most of her legal
documents. They also pointed out that Consuelo could not have gone to Makati where the
purported will was notarized considering her failing health and the distance of her
residence in Pasay City. Moreover, they alleged that Consuelo's signature was forged.
Thus, they prayed for the disallowance of probate and for the proceedings to be converted
into an intestate one.

However, Natividad contended that there was substantial compliance with Article 805 of
the Civil Code. Although the attestation clause did not state the number of pages
comprising the will, the same was clearly indicated in the acknowledgment portion.
Furthermore, the Tanchancos' allegations were not supported by proof.[14] Conversely, the
Tanchancos rebutted that the number of pages should be found in the body of the will and
not just in the acknowledgment portion.[15]

Eventually, the two cases (Spec. Proc. Case Nos. 97-4243 and 97-4244) were
consolidated before Branch 115 of the RTC of Pasay City.[16] Hearings commenced.

The subject will was witnessed by Atty. Kenny H. Tantuico (Atty. Tantuico), Atty. Ma.
Isabel C. Lallana (Atty. Lallana), and Atty. Aberico T. Paras (Atty. Paras) and notarized
by Atty. Nunilo O. Marapao, Jr. (Atty. Marapao).

Atty. Marapao testified that he specifically remembered the will in question because it
was his first time to notarize a will written in Tagalog. He was familiar with the other
witnesses and their signatures because they were his colleagues at Quasha Ancheta Peña
and Nolasco (Quasha Law Office) and because he was present during the signing of the
will. He also identified Consuelo's signature as he was present when she signed the will.
[17]
Atty. Marapao averred that he assisted Atty. Lallana in drafting the will. He described
Consuelo as very alert and sane, and not suffering from any ailment at the time. The will
was written in Tagalog at the request of Consuelo although she was conversant in
English. Their usual practice during the execution of a will is to ask the testator some
questions to determine whether he or she is of sound mind. If they find everything in
order, they would sign the will and then let the testator sign the same. Subsequently, the
will would be notarized.[18]

Atty. Paras identified the signatures of Atty. Lallana and Atty. Tantuico[19] as well as that
of Atty. Marapao.[20] Likewise, he affirmed Consuelo's signature in the will as he saw her
sign the will.[21] He additionally confirmed that the attesting witnesses asked Consuelo
probing questions to determine her state of mind and whether she was executing the will
voluntarily.[22] To prove her identity, Consuelo showed her residence certificate and
passport.[23] Atty. Paras recalled that Consuelo was not accompanied by anyone in the
conference room.[24]

Similarly, Atty. Tantuico affirmed his signature in the will as well as that of Atty. Paras'
and Atty. Lallana's as attesting witnesses, together with the signatures of Consuelo [25] and
Atty. Marapao.[26] He confirmed that they propounded questions to Consuelo to determine
the soundness of her mind.[27] Consuelo produced her residence certificate and passport to
prove her identity.[28] Consuelo's will was the first will that he encountered written
in Tagalog and he ascertained if Consuelo was comfortable with the said dialect. [29]

Atty. Tantuico stated that Consuelo looked younger than her actual age at the time of the
execution of the will and that she could speak English. Consuelo was alone in the
conference room and understood the will that she signed. Likewise, none of Consuelo's
relatives was made a witness to the will.[30]

In her Deposition Upon Written Interrogatories,[31] Atty. Lallana asserted that she was a
friend of Consuelo's family. She confirmed that she drafted the will and was one of the
witnesses to its execution. The will was signed and executed in the conference room of
Quasha Law Office with all the witnesses present to observe each other sign the will. She
likewise identified Consuelo's signature in the will as well as those of the other witnesses
who were her co-workers at Quasha Law Office. She had seen Consuelo's signatures in
other occasions prior to the execution of the will.

Atty. Lallana narrated that she met Consuelo at the lobby of Quasha Law Office and
accompanied her to the conference room. She asked Consuelo if the contents of the will
reflected the latter's wishes, to which the latter replied in the affirmative. Afterwards,
Atty. Lallana asked the other witnesses to join them in the conference room for the
execution of the will. The witnesses then asked Consuelo about her state of mind and
Atty. Marapao even joked with her regarding her personal circumstances. Atty. Lallana
emphasized that the witnesses conversed with Consuelo in order to determine her mental
capacity. Atty. Tantuico asked general questions regarding the will and after they were
satisfied that Consuelo understood the import of the will, they signed the documents in
each other's presence. After signing all the pages of the will, Atty. Marapao asked
Consuelo to swear to the truth of the proceeding then notarized the document.

Atty. Lallana averred that Consuelo possessed full mental faculties during the drafting
and execution of the will as shown by her responses to the questions propounded to her.
She was in good physical condition appropriate for her age. Consuelo arrived at Quasha
Law Office unaided and had the physical and mental stamina to sit through the review
and execution of the will.

Atty. Lallana affirmed that the will is in Tagalog, the dialect which Consuelo used to
communicate with her. They purposely used Tagalog to obviate any potential issues or
questions regarding Consuelo's ability to understand the nature and the contents of the
will. Atty. Lallana clarified that Consuelo informed her that she (Consuelo) had already
distributed the bulk of her estate between her two daughters and that the properties
subject of the will were the ones left in her control and possession.

In her cross-interrogatories,[32] Atty. Lallana clarified that she drafted the will upon the
request of Consuelo whom she met several times at her (Consuelo's) residence in Pasay
City. She always met with Consuelo in private for the purpose of drafting the will even if
there were other relatives present in the same house. Although Consuelo was
accompanied by her maid/companion (alalay) at the lobby of the Quasha Law Office, she
was alone with the attesting witnesses and the notary public during the signing of the
will. Consuelo wanted third parties to act as witnesses because she anticipated some of
her grandchildren to oppose the will.

Atty. Lallana stated that Remedios already received her share in the inheritance prior to
the execution of the will and before her demise in 1990. Thus, Atty. Lallana found no
reason to collate Consuelo's properties. She emphasized that she discussed the rules of
legitime to Consuelo and that preterition did not occur.

Atty. Lallana asked for the legal opinion of more senior lawyers in drafting the will. She
concluded that Consuelo was very sharp and perceptive.

On the other hand, Ronaldo asserted that he had a close relationship with Consuelo
before she was hospitalized[33] and insisted that Consuelo passed away without a will.
[34]
 He contended that it was unusual for Consuelo to execute a will in Tagalog as she had
always used the English language in her documents[35] although she spoke both English
and Tagalog.[36] He alleged that Consuelo told him that there was no need to draft a will
since the properties would just be divided between her two daughters.[37] He also
mentioned other lawyers, such as Atty. Cornelio Hizon (Atty. Hizon), whom Consuelo
previously transacted with but who were not affiliated with Quasha Law Office. [38]

During the second year of Consuelo's coma, Ronaldo met with Natividad, Alberto,
Catalino, Atty. Hizon, and Lumen Santiago to ascertain if Consuelo executed a will.
During the meeting, Natividad informed them that there was no will.[39] Moreover, he
alleged that Consuelo cannot walk unaided as early as 10 years before the alleged
execution of the will due to a previous accident.[40] Ronaldo stated that Consuelo was
forgetful[41] and bad with directions and that she needed her security guard or driver
and alalay to move around.[42] Consuelo was unhappy before her coma because Natividad
sold her properties as well as questioned and restricted her actions.[43] Natividad, by a
Special Power of Attorney, transferred properties before and during Consuelo's coma.
[44]
 Consuelo's actions were very dependent on Natividad's approval as the latter
supposedly intimidated the former.[45] Natividad only gave Consuelo an allowance and
she (Natividad) controlled Consuelo's properties.[46]

Ronaldo asserted that the will was one-sided as most of the properties would be given to
Natividad[47] and contrary to Consuelo's intention to equally distribute the properties
between her two daughters. In drafting contracts, Consuelo is usually assisted by family
lawyers or a close member of the family for guidance, and with the knowledge of
the alalay or companions.[48]

Ronaldo conceded that Consuelo's signatures in the will were similar with those in the
Deed of Absolute Sale[49] (which Ronaldo claimed is authentic).[50] Consuelo was well-
versed in Tagalog than English since she was from Bulacan and only finished Grade 6.
[51]
 Ronaldo knew that Consuelo travelled abroad on April 15, 1986, July 27, 1988, April
9, 1989 and March 9, 1991, or near the time the will was executed.[52] The signatures on
Consuelo's passport and on the will were similar although the signature in the will was
"signed brokenly" while in the passport, "straight."[53] Also, Ronaldo acknowledged that
in a particular photo dated March 29, 1991, Consuelo was standing alone and without
assistance.[54]

Ronaldo affirmed that a grandson of Consuelo, Jumby or Celso (one of Natividad's sons),
was a friend of Atty. Lallana in college.[55] Also, he agreed that he could not have
monitored every movement or transaction entered into by Consuelo and that it was
possible that Consuelo did not mention the existence of the will to him.[56]

Ronaldo maintained that Consuelo would always procure her residence certificate from
Pasay City.[57] He averred that Consuelo would constantly ask for an explanation for legal
terms which she could not understand. He then admitted that the Tagalog translation for
legal terms were provided in the will.[58]

Emilio Layug, Jr. (Layug), then security aide of Consuelo,[59] denied accompanying

Consuelo to Quasha Law Office in Makati City.[60] He averred that he would only
accompany her on special occasions and whenever she decided to bring him along with
her.[61] Consuelo could not leave the house without her companions, Nonita Legazpi and
Anita Lozada,[62] and she could no longer walk alone and needed to use a wheelchair as
she was weak.[63] He agreed that Natividad was Consuelo's favorite daughter. In 1987,
Layug always accompanied Consuelo and her alalay.[64]

During the hearing for the appointment of a special administrator, Catalino alleged that
he was Consuelo's favorite and that they had a close relationship. [65] He maintained that
Consuelo told him that she did not execute a will since the inheritance will be divided
between her two children.[66] He stated that the will was one-sided even when Consuelo
had always been very fair.[67] Catalino questioned the signature of Consuelo in the will as
it appeared to be "perfect" when it should be crooked since she was already 80 at the
time.[68] He added that Consuelo's documents were all in English[69] and that she never
engaged the services of Quasha Law Office before.[70] Consuelo did not leave the house
on her own as she cannot walk alone[71] and was already very sickly in 1997 and needed
an alalay.[72]

Catalino alleged that Natividad, after the burial of Consuelo, looted the things of
Consuelo and declared "war" against the Tanchancos.[73] During a family meeting
attended by his nephew, Jet Tanchanco, and the children of Natividad, he discovered that
Natividad supposedly found a will in Consuelo's dresser.[74]

Catalino conceded that the signature in the will is similar to Consuelo's signature. [75] He
likewise agreed that the signature in the passport was not crooked just like in the
purported will, even when he claimed that by that age, Consuelo's signature should be
crooked already.[76] In any case, during his cross-examination, Catalino was confronted
with the inconsistency of the grounds they raised in their opposition to the probate of the
will, as they alleged forgery with respect to Consuelo's signature in the will but at the
same time alleged that undue duress was employed upon Consuelo to execute the will. [77]

Meanwhile, Natividad confirmed that she was in-charge of Consuelo's businesses during
the latter's confinement in the hospital.[78] She had an "and/or" account with Consuelo and
she administered Consuelo's properties.[79] In 1987, Consuelo was always accompanied
by her alalay and she already needed assistance because she could not stand on her own.
[80]
 Consuelo was friends with Atty. Lallana who prepared Consuelo's will sometime in
1987.[81]

Alberto, Natividad's son, testified that Ronaldo knew about the status of the shares of
stocks which formed part of the estate as he was privy to the documents. [82] Moreover, he
asserted that Consuelo, in 1987 or the same year the purported will was executed,
travelled to the United States.[83] The purported will was found in the belongings of
Consuelo.[84]
In an Order[85] dated May 31, 2002, the RTC appointed Catalino as the special
administrator and set the bond at P1 Million. Natividad asked for a reconsideration[86] but
it was denied by the RTC in an Order[87] dated February 17, 2003. Hence, on June 5,
2002, Letters of Administration were issued in favor of Catalino.[88]

The Ruling of the Regional Trial Court

In a May 31, 2004 Decision,[89] Branch 115 of the RTC of Pasay City found the purported
will replete with aberrations. It noted that two attesting witnesses to the will and the
notary public were all associates of a Makati based law firm which is the counsel of
Natividad in the instant case. Nobody among Consuelo's relatives witnessed the
execution of the alleged will. Except for Natividad and her lawyers, no one knew that
Consuelo ever executed a will during her lifetime. Layug testified that they never went to
a law office in Makati City. The trial court found it unusual that an 81-year old sickly
woman would go without her bodyguard or alalay to Makati City considering that she
could no longer walk unaided and had to use a wheelchair.

Moreover, the RTC noted that the will's acknowledgment clause showed that Consuelo's
residence was in Makati City and not in Pasay City where she actually resided most of
her life. It found it preposterous that Consuelo would change her residence from Pasay
City to Makati City just for the purpose of drafting a will, and then return to Pasay City
after its execution.[90]

The RTC gave credence to Ronaldo's testimony that Consuelo declared that she had no
will and that her properties would be equally divided between her two children. The RTC
deemed it irregular when the purported will was suddenly produced only after Consuelo's
death and not years earlier especially since it was allegedly executed 10 years before her
death. Moreover, the will unconscionably favored Natividad as she was named as the
executrix of the will and most of the properties were disposed in her favor. The trial court
ruled that, taken as a whole, the will is dubious and should not be allowed probate. [91]

Aggrieved, Natividad appealed[92] to the CA.

The Ruling of the Court of Appeals

the CA, in its assailed June 25, 2012 Decision,[93] held that Article 960 of the Civil Code
preferred testacy over intestacy. Also, according to Section 20, Rule 132 of the Rules of
Court, the due execution and authenticity of a private document such as a will must be
proved either by anyone who saw the document executed or written or by evidence of the
genuineness of the signature or handwriting of the maker. Additionally, Section 11, Rule
76 provides that if the will is contested, all the subscribing witnesses and the notary, if
present in the Philippines and not insane, must be produced and examined during the
probate of the will. Deposition must be taken if all or some of the witnesses are not in the
Philippines. Natividad complied with the foregoing by presenting the testimonies of two
attesting witnesses, Atty. Tantuico and Atty. Paras, as well as that of Atty. Marapao who
notarized the will. Deposition upon written interrogatories and cross-interrogatories on
the written questions propounded by the Tanchancos' counsel were made upon Atty.
Lallana as the third witness to the will.

The said witnesses admitted signing the will in the presence of each other and Consuelo
in a conference room of Quasha Law Office in Makati City. Atty. Marapao averred that
at the time of the execution of the will, Consuelo was very alert and sane and was not
suffering from any physical ailment. Atty. Tantuico asserted that Consuelo was
intelligent enough to read and understand the will that she executed. Atty. Lallana,
through her deposition, identified the signatures on each and every page of Consuelo's
will since she was familiar with the signatures of her former associates and that of
Consuelo's given that she was present when the will was signed. Additionally, Atty.
Lallana stated that during the execution of the will, Consuelo possessed full mental
faculties, consistently responded to the questions of the witnesses regarding her personal
circumstances, and was of sound mind and body.[94]

The appellate court held that the positive testimonies of the witnesses established the due
execution and authenticity of the will especially when the Tanchancos could not present
proof that the said witnesses are not credible or competent. It added that the witnesses are
all lawyers who are not disqualified from being witnesses under the law except in cases
relating to privileged communication arising from attorney-client relationship.[95]

It noted that in the probate of the will, the authority of the court is limited to ascertaining
the extrinsic validity of the will in that the testator, of sound mind, freely executed the
will in accordance with the formalities prescribed by law. It found nothing extraordinary
in Natividad's act of submitting the will for probate 10 years from its execution and after
Consuelo's death especially since there is no law which obliges a testator to file a petition
for probate of his or her will during his or her lifetime.[96]

The CA further found that while Consuelo figured in an accident which limited her
mobility years before the execution of the contested will, the Tanchancos failed to
substantiate their claim that it was impossible for Consuelo to move around outside her
residence. Moreover, it noted that Consuelo travelled to the United States on two
occasions more than a year before and then seven months after the contested will was
executed. Thus, it was not impossible for Consuelo to travel from her residence in Pasay
City to the law office in Makati City.[97]

Moreover, the appellate court held that a comparison of Consuelo's signatures in her
1986, 1988 and 1989 residence certificates and the contested will did not compellingly
show that forgery was committed. It ruled that the Tanchancos failed to establish that
Consuelo's signature was forged, considering that they only advanced their self-serving
allegation of fraud.[98] Also, that non-relatives witnessed the execution of the will did not
affect its due execution. It held that "the ruling of the court a quo that a perusal of the will
even shows that it unconscionably favors [Natividad] when the decedent [Consuelo] not
only named [Natividad] as executrix of the will but practically disposes of all the
personal properties in her favor including, if not all, the remaining real properties, already
involve [an] inquiry on the will's intrinsic validity which need not be inquired upon by
the probate court."[99] Ergo, the CA held that it is not a rule that an extrinsically valid will
is always intrinsically valid and that the trial court had prematurely ruled that Consuelo's
will is also intrinsically invalid.[100]

The CA found that the Tanchancos failed to prove that Consuelo was of unsound mind
when she executed the contested will. Likewise, they only presented self-serving
allegations without presenting an expert witness that an 81-year-old woman does not
have the legal testamentary capacity to distribute her properties to her heirs upon her
death. Additionally, it held that no law requires the testator to execute the will in the
presence of his or her heirs and relatives. It similarly ruled that the Tanchancos did not
present proof that Consuelo could not understand Tagalog.[101]

The appellate court noted that while the attestation clause did not state the number of
pages comprising the will, still, it is verifiable by examining the will itself, as the pages
were duly numbered and signed by Consuelo and the instrumental witnesses. Moreover,
the acknowledgment portion of the contested will states that "Ang HULING
HABILING ito ay binubuo ng lima (5) na dahon, kasama ang dahong kinaroroonan ng
Pagpapatunay at Pagpapatotoong ito. SAKSI ang aking lagda at panatak
pangnotaryo."[102] In fine, the appellate court found that there was substantial compliance
with the requirements of Article 805 of the Civil Code. It held that since Consuelo named
Natividad as the executrix of the will, such should be respected unless the appointed
executor is incompetent, refuses the trust, or fails to give bond in which case the court
may appoint another person to administer the estate.[103]

The CA declared that the will should be allowed probate. The dispositive portion of the
appellate court's assailed Decision reads:
WHEREFORE, premises considered, the 31 May 2004 Decision of the Regional Trial
Court, Branch 115, Pasay City, is hereby REVERSED and SET ASIDE and a new one
rendered allowing the probate of the Huling Habilin at Pagpapasiya ni Consuelo
Santiago Garcia. Petitioner-appellant [Respondent] Natividad Garcia Santos is hereby
appointed executor of the estate pursuant to the Huling Habilin at Pagpapasiya of the
decedent.

Let the records of the instant case be remanded to the trial court of origin for the issuance
of letters testamentary to the petitioner [respondent] Natividad Garcia Santos to serve as
executor without bond.
SO ORDERED.[104]
The Tanchancos filed a motion for reconsideration[105] which was denied by the CA in a
Resolution[106] dated December 4, 2012. Discontented, the Tanchancos elevated [107] this
case before Us and raised the following grounds:
A.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT ALLOWED THE

PROBATE OF THE DECEDENT'S WILL DESPITE THE FINDINGS OF THE
PROBATE COURT THAT THE WILL WAS A TOTAL FABRICATION BASED
ON THE FOLLOWING CIRCUMSTANCES:

1. DECEDENT WAS PHYSICALLY INCAPABLE OF EXECUTING

THE WILL AT THE ALLEGED DATE AND PLACE OF
EXECUTION THEREOF;

2. THE SIGNATURE OF THE DECEDENT IN THE WILL IS A

FORGERY; AND

3. THE PURPORTED WILL IS REPLETE WITH FEATURES WHICH

LEAD TO AN INDISPUTABLE CONCLUSION THAT THE WILL
IS SIMULATED.

B.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT ALLOWED THE

PROBATE OF THE DECEDENT'S WILL DESPITE THE FACT THAT THE
WILL DOES NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW
UNDER ARTICLE 805 OF THE CIVIL CODE.

C.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT ALLOWED THE

PROBATE OF THE DECEDENT'S WILL DESPITE CIRCUMSTANCES
ALLEGED BY THE PETITIONERS [TANCHANCOS] THAT INDICATE BAD
FAITH, FORGERY OR FRAUD, OR UNDUE AND IMPROPER PRESSURE AND
INFLUENCE x x x ATTENDED THE EXECUTION OF THE WILL,
RENDERING THE SUBSTANTIAL COMPLIANCE RULE UNDER ART. 809 OF
THE CIVIL CODE INAPPLICABLE.

D.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT DISREGARDED

THE PRINCIPLE THAT FINDINGS OF FACTS AND LAW OF THE TRIAL
COURT, AS A TRIER OF FACTS, MUST BE GIVEN WEIGHT.

E.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT APPOINTED

MRS. SANTOS [NATIVIDAD] AS EXECUTRIX, EVEN THOUGH MRS.
SANTOS [NATIVIDAD] IS CLEARLY NOT FIT TO ACT AS EXECUTRIX OF
THE ESTATE.[108]
Thus, the main issue in this Petition is whether or not the will should be allowed probate.

The Ruling of the Court

The Petition is unmeritorious.

The Tanchancos argue that the will was a total fabrication given that Consuelo was
incapable of executing a will at the alleged date and place of execution. Consuelo resided
in Pasay City and not in Makati City, and her old age and prior accident limited her
mobility and disabled her in that she needed assistance most of the time. Moreover,
Consuelo's bodyguard who was always with her since 1987 averred that she never went
to Quasha Law Office. They question Atty. Lallana's assertion that Consuelo was
accompanied at the lobby of Quasha Law Office by a maid at the time the will was
executed since the said companion was never identified or presented as a witness. They
additionally claim that Consuelo's signatures in the will were forged as the signatures
therein were suspiciously neat and inconsistent with a "crooked" signature attributable to
imperfections and tremors which are usually experienced by an 80-year-old. [109]

The Tanchancos add that the will was simulated because they harbored doubts with the
law firm that drafted the will, which is the same counsel of Natividad in the instant case.
Moreover, they aver that none of Consuelo's relatives witnessed the execution of the will.
They assert that Consuelo's personal legal counsel was Atty. Deogracias (and then Atty.
Hizon after Atty. Deogracias' death) and not Atty. Lallana, and that Consuelo never
engaged the services of Quasha Law Office during her lifetime. Apart from this, they
claim that Consuelo never executed any legal document in Tagalog and that she had
always used the English language. Also, they maintain that Consuelo secured her
residence certificates from Pasay City every calendar year. Yet, in 1987, as can be
gleaned from the acknowledgment portion of the will, her residence certificate was issued
in Makati City where she was not a resident. They then contend that Natividad did not
produce Consuelo's residence certificate for 1987.[110]

The petitioners claim that during her lifetime, Consuelo consistently told her
grandchildren that she did not have a will and that if she decides to make one, she will
inform Mr. Ciano Neguidula or her lawyer, Atty. Hizon. In light of this, while Consuelo
was in a coma in 1997, Natividad, the Tanchancos, Atty. Hizon, and Lumen Santiago met
to discuss if Consuelo executed a will and they agreed that she did not. Nonetheless,
Nativ idad suddenly produced the will which was allegedly executed by Consuelo on
November 18, 1987. They contend that the will favored Natividad which was not in line
with Consuelo's character as she had always treated her daughters fairly and equally. [111]

Significantly, the Tanchancos argue that the will is fatally defective because it did not
conform to the formalities required under Article 805 of the Civil Code and the
attestation clause failed to state the number of pages upon which the will is written. They
add that a statement in the acknowledgment clause about the number of pages cannot be
raised to the level of an attestation clause. Thus, the will is null and void. They contend
that substantial compliance as contemplated under Article 809 of the Civil Code is not
applicable in this case because the attendant circumstances indicated bad faith, forgery, or
fraud, or undue and improper pressure and influence in the execution of the will.[112]

The Tanchancos enumerated the following circumstances demonstrating the alleged fraud
in the execution of the will:
5.43.1. It is highly questionable that Decedent, who already has a trusted lawyer, would
require the services of another. More suspicious is the fact that the alleged attesting
witnesses were all members of the Quasha Law Offices who now represent Mrs. Santos
[Natividad] in this case. Such testimonies, although not prohibited by law, are self-
serving.

5.43.2. It is also highly questionable, that a Huling Habilin prepared by the Quasha Law
Office, would have the infirmity of lacking the number of pages in the attestation clause
as required by law.

5.43.3. It is also highly questionable that Decedent, who was frail and advanced in years
would travel all the way from her home in Pasay City to Makati to execute her last will
and testament given that she has always retained the services of her own attorney, Atty.
Hizon in this case, who could have easily prepared the Will and Decedent could have had
the Will acknowledged by a notary public in Pasay City.

5.43.4. It is also highly questionable that the Decedent, given that her signatures found in
the residence certificates issued in the years just before and after the alleged execution of
the will were all crooked, suddenly would have a perfect smooth signature inconsistent
with her other recent signatures. Petitioners, who have personal knowledge of the
Decedent's signature, immediately recognized the signature appearing in the purported
Will as a forgery, which fact was correctly noted by the Trial Court.

5.43.5. It is also highly questionable that Decedent who acquired residence certificates
from Pasay City in the years before and after the execution of her final will would acquire
a residence certificate in Makati just for the purpose of executing her will. It should be
noted that the 1987 Makati residence certificate was conveniently not presented in Court
by Mrs. Santos [Natividad]. Furthermore, it should be considered that Decedent was a
resident of Pasay and not of Makati at the time of the execution of the will.

5.43.6. It is also highly unlikely that the Decedent, executing documents in English all
her life, would suddenly resort to having her last will executed in Pilipino. Although the
use of the national language is highly commended, the language and form of wills are so
technical and precise that it would only be logical for parties comfortable and
knowledgeable in the use of English language to resort to using it.

5.43.7. It is also highly unlikely that during the time the Decedent was in a coma, when
Mrs. Santos [Natividad], Petitioners, Atty. Hizon and Ms. Lumen Santiago met to discuss
whether a Will was executed by the Decedent, Mrs. Santos [Natividad] did not bring up
the fact that there indeed was a Will executed by the Decedent, considering Mrs. Santos
[Natividad] was present at the execution of the will, only to produce the questioned Will
after the death of the Decedent. This is proof of evident bad faith on the part of Mrs.
Santos [Natividad], who is bent on receiving more than her just share in the estate of the
Decedent.[113]
The Tanchancos insist that the ruling of the trial court should be given weight since it was
in the best position to evaluate the evidence and the witnesses presented before it by both
parties. They maintain that Natividad is not fit to act as executrix given that she
dissipated the properties of the estate; is not physically present most of the time in the
Philippines as she stays in San Francisco, California; and is almost 90 years old.
Moreover, they aver that the appointment of the administrator of the estate should be
resolved through a full-blown hearing.[114]

Natividad counters that the CA's ruling had legal and factual basis and that the will was
executed in accordance with the required formalities and solemnities, viz.:
(1) The last will and testament was written in Tagalog, a language known to and understood by
decedent. Decedent was born and raised in the province of Bulacan where the dialect is
Tagalog. More importantly, there was no evidence presented to show that Decedent could
not understand Tagalog at the time of the execution of the will;
(2) The last will and testament was subscribed at the end thereof by Decedent;
(3) The last will and testament was attested and subscribed by three (3) lawyers of Quasha Law
Office in the presence of Decedent and of one another;
(4) Each and every page of [the] last will and testament was signed by Decedent and three (3)
lawyers on the left margin;
(5) All pages of the last will and testament of Decedent were numbered correlatively on the
upper part of each page;
(6) The last will and testament of Decedent contains an attestation clause;
(7) And finally, the last will and testament of Decedent was acknowledged before a notary
public.[115]
Natividad avers that the testimonies of the Tanchancos' witnesses who discounted the
possibility of Consuelo travelling to Makati City could not outweigh the positive
testimonies of the attesting witnesses to the execution of the will. She points out that
Consuelo even travelled abroad before and after the will was executed. Additionally, the
lawyer-witnesses have no personal interest in the execution of the will; thus, there is no
reason for them to fabricate the same.[116]

Natividad asserts that the Tanchancos failed to prove forgery. She maintains that it is not
required that a witness to the will be a relative of the testator; it was not impossible for
Consuelo to engage the services of another lawyer in the execution of the will; it was not
prohibited for the will to be in Tagalog, a dialect known by Consuelo and which she was
comfortable with; it is not entirely impossible that Consuelo obtained a residence
certificate from Makati City for the purpose of executing her will; it was not proved that
Consuelo mentioned during her lifetime that she did not execute any will; the
Tanchancos' claim that Consuelo intended to equally divide her properties between her
two children was without merit; and, that the provisions of the will favored Natividad did
not affect its due execution and even bordered on the question of the intrinsic validity of
the will which is not within the purview of the probate court.[117]

Natividad insists that the will conforms to the formalities required under Article 805 of
the Civil Code since the trial court and the CA held that the attestation clause
substantially complied with the directive of the aforementioned provision. The
acknowledgment portion specifically mentioned that the necessary signatures were
affixed on every page of the will and referred to the number of pages the will was written.
She avers that the execution of the will was not attended by bad faith, forgery or fraud, or
undue influence and improper pressure. Furthermore, she asserts that the CA is not
precluded from reviewing the factual findings of the trial court especially when there was
a misapprehension of facts and the findings were without factual basis and grounded on
pure speculations. Lastly, she maintains that her appointment as executrix should be
followed as specified in the will.[118]

We now resolve.

Undoubtedly, the RTC and the CA had conflicting findings which would merit the
Court's review of the factual and legal circumstances surrounding the case and serve as an
exception to the rule that the Court can only rule on questions of law in petitions for
review on certiorari.[119]

We are inclined to affirm the findings and ruling of the CA as these were based on a
careful consideration of the evidence and supported by prevailing law and jurisprudence.
The Court concurs with the CA in holding that the trial court erred in lending credence to
the allegations of the Tanchancos which are bereft of substantiation that Consuelo's
signature was forged or that undue duress was employed in the execution of the will in
question.
It is settled that "the law favors testacy over intestacy"[120] and hence, "the probate of the
will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall
pass either real or personal property unless it is proved and allowed in accordance with
the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of
his property may be rendered nugatory."[121] In a similar way, "testate proceedings for the
settlement of the estate of the decedent take precedence over intestate proceedings for the
same purpose."[122]

The will faithfully complied with the formalities required by law

The main issue which the court must determine in a probate proceeding is the due
execution or the extrinsic validity of the will[123] as provided by Section 1, Rule 75[124] of
the Rules of Court. The probate court cannot inquire into the intrinsic validity of the will
or the disposition of the estate by the testator. Thus, due execution is "whether the
testator, being of sound mind, freely executed the will in accordance with the formalities
prescribed by law"[125] as mandated by Articles 805 and 806 of the Civil Code, as follows:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.

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 page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.
An examination of Consuelo's will shows that it complied with the formalities required
by the law,[126] except that the attestation clause failed to indicate the total number of
pages upon which the will was written. To address this concern, Natividad enumerated
the following attributes of the attestation clause and the will itself, which the Court
affirms:
a. The pages are completely and correlatively numbered using the same typewriting font
on all the pages of the will;

b. All indications point to the fact that the will was typewritten using the same typewriter;

c. There are no erasures or alterations in the will;

d. The notarial acknowledgment states unequivocally or with clarity that the will consists
of five (5) pages including the attestation clause (i.e.[,] the "pagpapatunay") and the
notarial acknowledgment itself (i.e.[,] the "pagpapatotoong ito");

e. All of the pages of the entire will were properly signed on the appropriate portions by
the testator and the instrumental witnesses;

f. All of the signatures of the testator and the instrumental witnesses on all the pages of
the will are genuine if only for the fact that they are identical/similar throughout;

g. The oppositors have not adduced, and in fact waived the presentation of, any kind of
evidence to impugn the authenticity of any of the signatures appearing in the will;

[h]. The oppositors have not adduced, and in fact waived the presentation of, any kind of
evidence tending to show that the will was allegedly executed by undue influence or any
fraudulent or improper/unlawful means[.][127]
Notably, the case of Caneda v. Court of Appeals[128] explained that:
x x x [U]nder Article 809, the defects or imperfections must only be with respect to the
form of the attestation or the language employed therein. Such defects or imperfections
would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving
the due execution and attestation has been held to be limited to merely an examination of
the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the
fact that the attesting witnesses signed each and every page of the will in the presence of
the testator and of each other. In such a situation, the defect is not only in the form or the
language of the attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. x x x

Furthermore, the rule on substantial compliance in Article 809 x x x presupposes that the
defects in the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not expressed
in the attestation clause or from which it may necessarily be gleaned or clearly inferred
that the acts not stated in the omitted textual requirements were actually complied with in
the execution of the will. In other words, the defects must be remedied by intrinsic
evidence supplied by the will itself.

xxxx

The so-called liberal rule, the Court said in Gil v. Murciano, 'does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell
us when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into
its confines, to ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results.'

It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.[129](Citations Omitted)
Moreover, Mitra v. Sablan-Guevarra[130] instructs, viz.:
As to whether the failure to state the number of pages of the will in the attestation clause
renders such will defective, the CA, citing Uy Coque vs. Naves Sioca and In re: Will of
Andrada, perceived such omission as a fatal flaw. In Uy Coque, one of the defects in the
will that led to its disallowance is the failure to declare the number of its pages in the
attestation clause. The Court elucidated that the purpose of requiring the number of pages
to be stated in the attestation clause is to make the falsification of a will more difficult.
In In re: Will of Andrada, the Court deemed the failure to state the number of pages in the
attestation clause, fatal. Both pronouncements were, however, made prior to the
effectivity of the Civil Code on August 30, 1950.

Subsequently, in Singson vs. Florentino, the Court adopted a more liberal approach and
allowed probate, even if the number of pages of the will was mentioned in the last part of
the body of the will and not in the attestation clause. This is to prevent the will of the
testator from being defeated by purely technical considerations.

The substantial compliance rule is embodied in the Civil Code as Article 809 thereof,
which provides that:
Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with all the requirements of Article
805.
Thus, in Taboada vs. Hon. Rosal, the Court allowed the probate of a will notwithstanding
that the number of pages was stated not in the attestation clause, but in the
Acknowledgment. In Azuela vs. CA, the Court ruled that there is substantial compliance
with the requirement, if it is stated elsewhere in the will how many pages it is comprised
of.

What is imperative for the allowance of a will despite the existence of omissions is that
such omissions must be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence. "However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself." (Citations omitted).
In the instant case, the attestation clause indisputably omitted to mention the number of
pages comprising the will. Nevertheless, the acknowledgment portion of the will supplied
the omission by stating that the will has five pages, to wit: "Ang HULING HABILING ito
ay binubuo ng lima (5) na dahon, kasama ang dahong kinaroroonan ng Pagpapatunay at
Pagpapatotoong ito."[131] Undoubtedly, such substantially complied with Article 809 of
the Civil Code. Mere reading and observation of the will, without resorting to other
extrinsic evidence, yields the conclusion that there are actually five pages even if the said
information was not provided in the attestation clause. In any case, the CA declared that
there was substantial compliance with the directives of Article 805 of the Civil Code.

When the number of pages was provided in the acknowledgment portion instead of the
attestation clause, "[t]he spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial requirements of the law
in order to insure the authenticity of the will, the formal imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account, may only
defeat the testator's will."[132]

Lawyers are not disqualified from being witnesses to a will; the subscribing witnesses
testified to the due execution of the will

Article 820 of the Civil Code provides that, "[a]ny person of sound mind and of the age
of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may
be a witness to the execution of a will mentioned in Article 805 of this Code." Here, the
attesting witnesses to the will in question are all lawyers equipped with the
aforementioned qualifications. In addition, they are not disqualified from being witnesses
under Article 821[133] of the Civil Code, even if they all worked at the same law firm at
the time. As pointed out by Natividad, these lawyers would not risk their professional
licenses by knowingly signing a document which they knew was forged or executed
under duress; moreover, they did not have anything to gain from the estate when they
signed as witnesses. All the same, petitioners did not present controverting proof to
discredit them or to show that they were disqualified from being witnesses to Consuelo's
will at the time of its execution.
Since the will in this case is contested, Section 11, Rule 76 of the Rules of Court applies,
to wit:
SEC. 11. Subscribing witnesses produced or accounted for where will contested. - If the
will is contested, all the subscribing witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines, if present in the Philippines and not
insane, must be produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such witnesses are
present in the Philippines but outside the province where the will has been filed, their
deposition must be taken. x x x
The lawyer-witnesses unanimously confirmed that the will was duly executed by
Consuelo who was of sound mind and body at the time of signing. The Tanchancos failed
to dispute the competency and credibility of these witnesses; thus, the Court is disposed
to give credence to their testimonies that Consuelo executed the will in accordance with
the formalities of the law and with full mental faculties and willingness to do so.

The burden of proof is upon the Tanchancos to show that Consuelo could not have
executed the will or that her signature was forged

It is beyond cavil that Consuelo understood both Tagalog and English. In fact, the

Tanchancos failed to disprove that Consuelo was more comfortable to use
the Tagalog dialect in writing the will, given that she was born and raised in Bulacan
where the main dialect is Tagalog. Notably, although wholly written in Tagalog, the will
contained the English equivalent for the other terms which relate to wills and succession.

The Tanchancos, despite their allegation that Consuelo should have employed the
services of Atty. Hizon, failed to present him in court to validate their claim that he was
Consuelo's personal legal counsel and bolster their position that Consuelo could not have
engaged the services of Quasha Law Office at all since she purportedly never had any
prior dealings with the said firm. The Tanchancos likewise failed to refute that Atty.
Lallana was actually a family friend. Atty. Lallana stated in her deposition that Consuelo
personally discussed the matters concerning the will with her alone and in private. Atty.
Lallana even added that Consuelo knew that the Tanchancos would oppose the will. This
may explain why Consuelo chose another counsel to handle the execution of her will so
that the heirs would not be able object to it or interfere with her choices.

Likewise, the CA found that Consuelo travelled abroad barely months before and after
the will was executed. By inference, such finding demonstrated that she still had the
mental and physical capacity to execute a will even if the law firm is in Makati City. The
photographs presented during the hearings showed that Consuelo can still stand on her
own after the will was executed.

About the claim of forgery, the same remains unsubstantiated because the Tanchancos
merely surmised that there were discrepancies in Consuelo's signatures in the Residence
Certificates and in the will, and insisted that the said signatures should not be "perfectly
written" and instead should be "crooked" due to Consuelo's age.

Based on the Court's assessment, the signatures in Consuelo's Residence

Certificates[134] were similar with her signature in the contested will. As found by the CA,
"[a] close scrutiny of the signatures appearing in the 1986, 1988 and 1989 residence
certificates of the decedent and comparing them with the signatures of the testatrix in the
contested Will failed to disclose a convincing, definitive and conclusive showing of
forgery. The appealed decision of the court a quo [RTC] likewise failed to discuss how it
came to its conclusion that the will contains forged signatures of Consuelo which is one
of the reasons it was denied probate. Other than the self-serving allegations of the
oppositors-appellees, no evidence was ever presented in court that would indubitably
establish forgery of the decedent's signature in the contested will."[135]

Bare allegations without corroborating proof that Consuelo was under duress in
executing the will cannot be considered

As similarly found by the CA, the Tanchancos did not adduce evidence to corroborate
their allegation that Consuelo declared that she would not execute a last will and
testament, other than their self-interested statements.[136] In addition, they failed to portray
that Consuelo did not have the testamentary capacity to execute the will or that she was
suffering from a condition which could have definitively prevented her from doing so.

The Tanchancos did not explain how Consuelo could have been forced into executing the
will, as they merely focused on her alleged physical inability to go to the Quasha Law
Office in Makati City. They did not present witnesses who could prove that she was
forced into making the will, or that she signed it against her own wishes and volition.

The Tanchancos insisted that Consuelo intended to divide her properties equally between
her two daughters, Natividad and Remedios. Yet, based on the testimony of Natividad
and the deposition of Atty. Lallana, Consuelo, during her lifetime, already apportioned
the prime properties to her two daughters and retained some properties for her own use
and support. Hence, what properties she had left, Consuelo could dispose of in any way
she desired, as long as the rules on legitime and preterition are observed.

In any case, as earlier stated, inquiring into the intrinsic validity of the will or the manner
in which the properties were apportioned is not within the purview of the probate court.
"The court's area of inquiry is limited to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary
capacity, and the compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said court - at this
stage of the proceedings - is not called upon to rule on the intrinsic validity or efficacy of
the provisions of the will, the legality of any devise or legacy therein."[137]

The will should be allowed probate

Considering the foregoing, the will of Consuelo should be allowed probate as it complied
with the formalities required by the law. The Tanchancos failed to prove that the same
was executed through force or under duress, or that the signature of the testator was
procured through fraud as provided under Article 839[138] of the Civil Code and Rule 76,
Section 9[139] of the Rules of Court.

We agree with the CA that the court should respect the prerogative of the testator to name
an executrix (in this case, Natividad) in her will absent any circumstance which would
render the executrix as incompetent, or if she fails to give the bond requirement or refuses
to execute the provisions of the will.[140]

WHEREFORE, the Petition for Review on Certiorari is hereby DENIED. The assailed

June 25, 2012 Decision and December 4, 2012 Resolution of the Court of Appeals in CA-
G.R. CV No. 89593 are AFFIRMED.

SO ORDERED.

[ G. R. No. L-5826, April 29, 1953 ]

TESTATE ESTATE OF THE LATE VICENTE CAGRO. JESUSA CAGRO,
PETITIONER AND APPELLEE, VS. PELAGIO CAGRO, ET AL.,
OPPOSITIORS AND APPELLANTS.

DECISION

PARAS, C.J.:

This is an appeal interposed by the oppositiors from a decision of the Court of

First Instance of Samar, admitting to probate the will allegedly executed by Vicente
Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellants is that the will is fatally defective,
because its attestation clause is not signed by the attesting witnesses.  There is no
question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct.  The
attestation clause is "a memorandum of the facts attending the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear their
signatures.  An unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-
hand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause.  This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of all its pages.  If an
attestation clause not signed by the three witnesses at 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 the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question
denied.  So ordered with costs against the petitioner and appellee.

THIRD DIVISION
[ G.R. NO. 122880, April 12, 2006 ]
FELIX AZUELA, PETITIONER, VS. COURT OF APPEALS, GERALDA
AIDA CASTILLO SUBSTITUTED BY ERNESTO G. CASTILLO,
RESPONDENTS.

DECISION

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed
by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to 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 the Regional Trial
Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to
probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981.
Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput
siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na
ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang
ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa

kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at
kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500
San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob
kong ito ay walang pasubali't at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling

habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag
sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10
ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa
amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa
harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig
ng lahat at bawa't dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; bsp; & NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8[1]
The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented
herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent. [2] Geralda
Castillo claimed that the will is a forgery, and that the true purpose of its emergence
was so it could be utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property, all centering
on petitioner's right to occupy the properties of the decedent. [3] It also asserted that
contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per records,
it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died
in 1965,[4] and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.[5]

Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedent's signature did not appear on the
second page of the will, and the will was not properly acknowledged. These twin
arguments are among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.
[6]
 The RTC favorably took into account the testimony of the three (3) witnesses to the
will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore
"the modern 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 his last wishes;" [7] and
from this perspective, rebutted oppositor's arguments that the will was not properly
executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in respect
to the formalities in the execution of a will, i.e., the liberalization of the interpretation of
the law on the formal requirements of a will with the end in view of giving the testator
more freedom in expressing his last wishes, this Court is persuaded to rule that the will
in question is authentic and had been executed by the testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will
after the signature of the testatrix, the following statement is made under the sub-title,
"Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at
bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan
at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance with the
requirements of the law.

On the oppositor's contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the signing by
the subscribing witnesses on the left margin of the second page of the will containing
the attestation clause and acknowledgment, instead of at the bottom thereof,
substantially satisfies the purpose of identification and attestation of the will.

With regard to the oppositor's argument that the will was not numbered correlatively in
letters placed on upper part of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will is composed of only two
pages. The first page contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to invalidate the will. For the
same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.

As regards the oppositor's assertion that the signature of the testatrix on the will
is a forgery, the testimonies of the three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of the testatrix and the due
execution of the will.[8]
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of
the petition for probate.[9] The Court of Appeals noted that the attestation clause failed
to state the number of pages used in the will, thus rendering the will void and
undeserving of probate.[10]

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the
number of pages used in a notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."[11]

The solution to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.

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 page thereof, or caused some other
person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of the
will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will.[12] There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca[13] and In re: Will of Andrada.[14] In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
attestation clause 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 consideration
which remains highly relevant to this day: "The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of
sheets such removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand, the total
number of sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty." [16]

The case of In re Will of Andrada concerned a will the attestation clause of which failed
to state the number of sheets or pages used. This consideration alone was sufficient for
the Court to declare "unanim[ity] upon the point that the defect pointed out in the
attesting clause is fatal."[17] It was further observed that "it cannot be denied that the x x
x requirement affords additional security against the danger that the will may be
tampered with; and as the Legislature has seen fit to prescribe this requirement, it must
be considered material."[18]

Against these cited cases, petitioner cites Singson v. Florentino[19] and Taboada v. Hon.

Rosal,[20] wherein the Court allowed probate to the wills concerned therein despite the
fact that the attestation clause did not state the number of pages of the will. Yet the
appellate court itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus
Emilia Florentino, et al., 92 Phil. 161 and 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
does not contain the number of pages used upon which the Will is written. However,
the Decisions of the Supreme Court are not applicable in the aforementioned appeal at
bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al.,
supra," although the attestation in the subject Will did not state the number of pages
used in the will, however, the same was found in the last part of the body of the Will:

"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the 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 re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be
that the attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x

We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. 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" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not
stated in any part of the Will. The will does not even contain any notarial
acknowledgment wherein the number of pages of the will should be stated.[21]
Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal requirement
of wills was Section 618 of the Code of Civil Procedure. [22] Reliance on these cases
remains apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618. [23] However, the enactment of
the Civil Code in 1950 did put in force a rule of interpretation of the requirements of
wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated
that "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. This objective is in accord with the [modern tendency] in respect to the
formalities in the execution of wills."[24] However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "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."[25]

Caneda v. Court of Appeals[26] features an extensive discussion made by Justice

Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation clause
in wills.[27] Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction. [28] However, the Code
Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L.
Reyes as to how Article 809 should be applied:
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 are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.[29] (Emphasis
supplied.)
 The Court of Appeals did cite these comments by Justice J.B.L. 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 defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other, [30] the other omission cited by Justice
J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those omissions
which cannot be supplied except by evidence aliunde would result in the invalidation of
the attestation clause and ultimately, of the will itself." [31] Thus, a failure by the
attestation clause to state that the testator signed every page can be liberally construed,
since that fact can be checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one another's presence should be
considered a fatal flaw since the attestation is the only textual guarantee of compliance.
[32]

The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages.[33] The failure to state the number of pages equates
with the absence of an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as
was the situation in Singson and Taboada. However, in this case, there could have been
no substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of the
members of the Code Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial wills. [34] Compliance with these
requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.[35] The transcendent
legislative intent, even as expressed in the cited comments of the Code Commission, is
for the fruition of the testator's incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that should
necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While
the signatures of the instrumental witnesses appear on the left-hand margin of the will,
they do not appear at the bottom of the attestation clause which after all consists of
their averments before the notary public.

Cagro v. Cagro[36] is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin." [37] While
three (3) Justices[38] considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by
law to be made by the attesting witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-
hand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at 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 the testator and any or all of the witnesses.[39]
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign each page
of the will, from the requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these two classes of signature
are distinct from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they 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 statements contained in the attestation clause
itself. Indeed, the attestation clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses' undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly
different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses' signatures on each and
every page, the fact must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses themselves. 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; the fact that the testator had signed the
will and every 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 only proof in the
will that the witnesses have stated these elemental facts would be their signatures on
the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should
also hinge. The requirement under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses" has also not been complied
with. The importance of this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in this case is equally
as critical as the other cited flaws in compliance with Article 805, and should be treated
as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan

ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."[40] By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or deed. [41] It
involves an extra step undertaken whereby the signor actually declares to the notary
that the executor of a document has attested to the notary that the same is his/her own
free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to
the usual language thereof. A jurat is that part of an affidavit where the notary certifies
that before him/her, the document was subscribed and sworn to by the executor.
[42]
 Ordinarily, the language of the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the notary public averred that he
himself "signed and notarized" the document. Possibly though, the word "ninotario" or
"notarized" encompasses the signing of and swearing in of the executors of the
document, which in this case would involve the decedent and the instrumental
witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act.[43] The acknowledgment coerces the
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 free act or deed. Such declaration
is under oath and under pain of perjury, thus allowing for the criminal prosecution of
persons who 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.

There are two other requirements under Article 805 which were not fully satisfied by
the will in question. We need not discuss them at length, as they are no longer material
to the

disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and
that all the pages shall be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called "logical
end"[44] of the will on its first page. Also, the will itself is not numbered correlatively in
letters on each page, but instead numbered with Arabic numerals. There is a line of
thought that has disabused the notion that these two requirements be construed as
mandatory.[45] Taken in isolation, these omissions, by themselves, may not be sufficient
to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be of
a general lack of due regard for the requirements under Article 805 by whoever
executed the will.

All told, the string of mortal defects which the will in question suffers from makes the
probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

FIRST DIVISION
 [ G.R. No. L-32213, November 26, 1973 ]
AGAPITA N. CRUZ, PETITIONER, VS. HON. JUDGE GUILLERMO P.
VILLASOR, PRESIDING JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU, AND MANUEL B. LUGAY, RESPONDENTS.

DECISION

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court of First Instance of

Cebu allowing the probate of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposed
the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud,
deceit, misrepresentation and undue influence; that the said instrument was executed
without the testator having been fully informed of the contents thereof, particularly as
to what properties he was disposing; and that the supposed last will and testament was
not executed in accordance with law. Notwithstanding her objection, the Court allowed
the probate of the said last will and testament. Hence this appeal by certiorari which
was given due course.

The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E")
was executed in accordance with law, particularly Articles 805 and 806 of the new Civil
Code, the first requiring at least three credible witnesses to attest and subscribe to the
will, and the second requiring the testator and the witnesses to acknowledge the will
before a notary public.

Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr.
Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question to resolve is whether the last
will and testament in question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that the three
attesting witnesses must appear before the notary public to acknowledge the same. As
the third witness is the notary public himself, petitioner argues that the result is that
only two witnesses appeared before the notary public to acknowledge the will. On the
other hand, private respondent -appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three attesting
witnesses even if the notary public acted as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as certifying to
an acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument."
After weighing the merits of the conflicting claims of the parties, We are inclined
to sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To acknowledge before means to
avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to
own as genuine, to assent, to admit; and "before" means in front or preceding in space
or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72;
Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's
New International Dictionary 2d. p. 245.) Consequently, if the third witness were the
notary public himself, he would have to avow, assent, or admit his having signed the will
in front of himself. This cannot be done because he cannot split his personality into two
so that one will appear before the other to acknowledge his participation in the making
of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any
illegal or immoral arrangements. (Balinon v. De Leon, 50 O. G. 583.) That function would
be defeated if the notary public were one of the attesting or instrumental witnesses. For
then he would be interested in sustaining the validity of the will as it directly involves
himself and the validity of his own act. It would place him in an inconsistent position and
the very purpose of the acknowledgment, which is to minimize fraud (Report of the
Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that a notary public may, in
addition, act as a witness to the execution of the document he has notarized. (Mahilum
v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are
others holding that his signing merely as a notary in a will nonetheless makes him a
witness thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y.
S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911; Tyson v. Utterback, 122 So. 496; In Re
Baybee's Estate 160 N. W. 900; Merrill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein, because the notaries public and
witnesses referred to in the aforecited cases merely acted as instrumental, subscribing
or attesting witnesses, and not as acknowledging witnesses. Here the notary public
acted not only as attesting witness but also as acknowledging witness, a situation not
envisaged by Article 806 of the Civil Code which reads:
"ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a copy of
the will or file another with the office of the Clerk of Court." [Underscoring supplied]
To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting witnesses
to the will which would be in contravention of the provisions of Article 805 requiring at
least three credible witnesses to act as such and of Article 806 which requires that the
testator and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for that purpose. In the circumstances, the law would
not be duly observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.

Costs against the appellee.

THIRD DIVISION
[ G.R. No. 192916, October 11, 2010 ]
MANUEL A. ECHAVEZ, PETITIONER, VS. DOZEN CONSTRUCTION AND
DEVELOPMENT CORPORATION AND THE REGISTER OF DEEDS OF
CEBU CITY, RESPONDENTS.

RESOLUTION
BRION, J.:

Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City,
which includes Lot No. 1956-A and Lot No. 1959 (subject lots).  On September 7, 1985,
Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a Deed
of Donation Mortis Causa.[1] Manuel accepted the donation.

In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen
Construction and Development Corporation (Dozen Corporation).  In October 1986, they
executed two Deeds of Absolute Sale over the same properties covered by the previous
Contract to Sell.

On November 6, 1986, Vicente died.  Emiliano Cabanig, Vicente's nephew, filed a

petition for the settlement of Vicente's intestate estate.  On the other hand, Manuel
filed a petition to approve Vicente's donation mortis causa in his favor and an action to
annul the contracts of sale Vicente executed in favor of Dozen Corporation.  These
cases were jointly heard.

The Regional Trial Court (RTC) dismissed Manuel's petition to approve the donation
and his action for annulment of the contracts of sale. [2]  The RTC found that the
execution of a Contract to Sell in favor of Dozen Corporation, after Vicente had donated
the lots to Manuel, was an equivocal act that revoked the donation.   The Court of
Appeals (CA) affirmed the RTC's decision.[3]  The CA held that since the donation in favor
of Manuel was a donation mortis causa, compliance with the formalities for the validity
of wills should have been observed. The CA found that the deed of donation did not
contain an attestation clause and was therefore void.

The Petition for Review on Certiorari

Manuel claims that the CA should have applied the rule on substantial compliance in the
construction of a will to Vicente's donation mortis causa.  He insists that the strict
construction of a will was not warranted in the absence of any indication of bad faith,
fraud, or substitution in the execution of the Deed of Donation Mortis Causa.  He argues
that the CA ignored the Acknowledgment portion of the deed of donation, which
contains the "import and purpose" of the attestation clause required in the execution of
wills.  The Acknowledgment reads:
 BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu,
personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on April
10, 1985 at [sic] Talisay, Cebu known to me to be the same person who executed the
foregoing instrument of Deed of Donartion Mortis Causa before the Notary Public and in
the presence of the foregoing three (3) witnesses who signed this instrument before
and in  the presence of each other and of the Notary Public  and all of them acknowledge
to me that the same is their voluntary act and deed. [Emphasis in the original.]

THE COURT'S RULING

The CA correctly declared that a donation mortis causa must comply with the formalities
prescribed by law for the validity of wills,[4]  "otherwise, the donation is void and would
produce no effect." [5]  Articles 805 and 806 of the Civil Code should have been applied.

As the CA correctly found, the purported attestation clause embodied in the

Acknowledgment portion does not contain the number of pages on which the deed was
written.  The exception to this rule in Singson v. Florentino[6] and Taboada v. Hon. Rosal,
[7]
  cannot be applied to the present case, as the facts of this case are not similar with
those of Singson and Taboada.   In those cases, the Court found that although the
attestation clause failed to state the number of pages upon which the will was written,
the number of pages was stated in one portion of the will.  This is not the factual
situation in the present case.

Even granting that the Acknowledgment embodies what the attestation clause requires,
we are not prepared to hold that an attestation clause and an acknowledgment can be
merged in one statement.
That the requirements of attestation and acknowledgment are embodied in two
separate provisions of the Civil Code (Articles 805 and 806, respectively) indicates that
the law contemplates two distinct acts that serve different purposes.  An
acknowledgment is made by one executing a deed, declaring before a competent officer
or court that the deed or act is his own.  On the other hand, the attestation of a will
refers to the act of the instrumental witnesses themselves who certify to the execution
of the instrument before them and to the manner of its execution.[8]

Although the witnesses in the present case acknowledged the execution of the Deed of
Donation Mortis Causa  before the notary public, this is not the avowal the law requires
from the instrumental witnesses to the execution of a decedent's will. An attestation
must state all the details the third paragraph of Article 805 requires.  In the absence of
the required avowal by the witnesses themselves, no attestation clause can be deemed
embodied in the Acknowledgement of the Deed of Donation Mortis Causa.

Finding no reversible error committed by the CA, the Court hereby DENIES Manuel's

petition for review on certiorari.

SO ORDERED.

[ G.R. No. L-26615, April 30, 1970 ]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, PETITIONERS, VS.
HON. CONRADO M. VASQUEZ, AS JUDGE OF THE COURT OF FIRST
INSTANCE OF MANILA, BRANCH V, AND CONSUELO GONZALES VDA.
DE PRECILLA, RESPONDENTS.

[G.R. NO. L-26864.  APRIL 30, 1970]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, PETITIONERS, VS.
HON. CONRADO M. VASQUEZ, AS JUDGE OF THE COURT OF FIRST
INSTANCE OF MANILA, BRANCH V; REGISTER OF DEEDS OF MANILA
AND CONSEULO GONZALES VDA. DE PRECILLA, RESPONDENTS.

[G.R. NO. 27200.  APRIL 30, 1970]

TESTATE ESTATE OF GLICERIA ROSARIO, DECEASED, CONSUELO S.

GONZALES VDA. DE PRECILLA, PETITIONER-ADMINISTRATRIX, VS.
SEVERINA NARCISO, ROSA. NARCISO, JOSEFA NARCISO, VICENTE
MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V.
GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS,
DR. JAIME ROSARIO, ET AL.; NATIVIDAD DEL ROSARIO SARMIENTO
AND PASCUALA NARCISO-MANAHAN, OPPOSITORS-APPELLANTS.

DECISION
REYES, J.B.L., J.:

G.R. No. L--27200 is an appeal from the order of the Court of First Instance of Manila (in
Sp. Proc. 62618) admitting to probate the alleged last will and testament of the
late Gliceria Avelino del Rosario, dated 29 December 1960, G. R. Nos. L-26615 and L-
26864 are separate petitions for mandamus filed by certain alleged heirs of said decedent
seeking (1) to compel the probate court to remove Consuelo S. Gozales-Precilla as
special administratrix of the estate, for conflict of interest, and to appoint a new one in
her stead; and (2) to order the Register of Deeds of Manila to annotate notice
of lis pendens in TCT Nos. 31735, 81736 and 81737, registered in the name of
Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly
belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965,

leaving no descendants, ascendants, brother or sister.  At the time of her death, she was
said to be 90 years old, more or less, and possessed of an estate consisting mostly of real
properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased,

petitioned the Court of First Instance of Manila for probate of the alleged last will and
testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her
appointment as special administrarix of the latter's estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev.
Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del
Rosario on 9 June 1956; (2) Dr. Jaime Rosario and children, relatives and legatees in both
the 1956 and 1960 wills; Antonio Jesus de Praga and Maria Natividad de Jesus, wards of
the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion and
Eduardo, all surnamed Narciso; (4) Natividad del Rosario Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and
Vicente and Delfin, surnamed Mauricio, - the latter five groups of persons all claiming to
be relatives of Dona Gliceria within the fifth civil degree.  The oppositions invariably
charged that the instrument executed in 1960 was not intended by the deceased to be her
true will; that the signature of the deceased appearing in the will was procured through
undue and improper pressure and influence on the part of the beneficiaries and/or other
persons; that the testatrix did not know the object of her bounty; that the instrument itself
reveals irregularities in its execution, and that the formalities required by law for such
execution have not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased,
joined the group of Dr. Jaime Rosario in registering opposition to the appointment of
petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground
that the latter possesses interest adverse to the estate.  After the parties were duly heard,
the probate court, in its order of 2 October 1965, granted petitioner's prayer and appointed
her special administratrix of the estate upon a bond for P30,000.00. The order was
premised on the fact that petitioner was managing the properties belonging to the estate
even during the lifetime of the deceased, and to appoint another person as administrator
or co-administrator at that stage of the proceeding would only result in further confusion
and difficulties.

On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate court an

urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals made
against the funds of the deceased after 2 September 1965.  The court denied this motion
on 22 October 1965 for being premature, it being unaware that such deposit in the name
of the deceased existed.[1]

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children,
Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court
for the immediate removal of the special administratrix.  It was their claim that the
special administratrix and her deceased husband, Alfonso Precilla,[2] had
caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute
sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon located
in Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the administrator to protect
and conserve the properties of the estate, and it may become necessary that an action for
the annulment of the deed of sale and for recovery of the aforementioned parcels of land
be filed against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the
Special Administratrix to deposit with the Clerk of Court all certificates of title belonging
to the estate.  It was alleged that on 22 October 1965, or after her appointment, petitioner
Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate
of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First
Instance of Manila a motion for the issuance of new copies of the owner's duplicates of
certain certificates of title in the name of Gliceria del Rosario, supposedly needed by her
"in the preparation of the inventory" of the properties constituting the estate.  The motion
having been granted, new copies of the owner's duplicates of certificates appearing in the
name of Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204)
were issued on 15 November 1965.  On 8 December 1965, according to the oppositors,
the same special administratrix presented to the Register of Deeds the deed of sale
involving the properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates (Nos. 81735,
81736 and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S.
Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will
of Gliceria A. del Rosario (Exhibit "D").  In declaring the due execution of the will, the
probate court took note that no evidence had been presented to establish that the testatrix
was not of sound mind when the will was executed; that the fact that she had prepared an
earlier will did not prevent her from executing another one thereafter; that the fact that the
1956 will consisted of 12 pages whereas the 1960 testament was contained in one page
does not render the latter invalid that the erasures and alterations in the instrument were
insignificant to warrant its rejection, that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors are even indicative of their
truthfulness.  The probate court, also considering that petitioner had already shown
capacity to administer the properties of the estate and that from the provisions of the will
she stands as the person most concerned and interested therein, appointed said petitioner
regular administratrix with a bond for P50,000.00.  From this order all
the oppositors appealed, the case being docketed in this Court as G. R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors' motion of 14
December 1965 for the removal of the then special administratrix, as follows:

"It would seem that the main purpose of the motion to remove the
special administratrix and to appoint another one in her stead, is in order that an action
may be filed against the special administratrix for the annulment of the deed of sale
executed by the decedent on January 10, 1961.  Under existing documents, the
properties sold pursuant to the said deed of absolute sale no longer forms part of the
estate.  The alleged conflict of interest is accordingly not between the estate and third
parties, but between different claimants of the same estate.  If it is desired by
the movants that an action be filed by them to annul the aforesaid deed of absolute
sale, it is not necessary that the special administratrix be removed and that another one
be appointed to file such action, Such a course of action would only produce confusion
and difficulties in the settlement of the estate.  The movants may file the aforesaid
proceedings, preferably in an independent action, to secure the nullity of the deed of
absolute sale even without leave of this court."
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in
the name of the decedent, the same was also denied, for the reason that if
the movants were referring to the old titles, they could no longer be produced, and if they
meant the new duplicate copies thereof that were issued at the instance of the
special administratrix, there would be no necessity therefor, because they were already
cancelled and other certificates were issued in the name of Alfonso Precilla, This order
precipitated the oppositors' filing in this Court of a petition for mandamus (G. R. No. L-
26615, Rev. Fr. Lucio V. Garcia, et al, vs. Hon. Judge Conrado M. Vasquez, et al), which
was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in this Court,
the oppositors requested the Register of Deeds of Manila to annotate a notice
of lis pendens in the records of TCT Nos. 81736, 81736, and 81737 in the name of
Alfonso Precilla.  And when said official refused to do so, they applied to the probate
court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate
a lis pendens notice in the aforementioned titles, contending that the matter of removal
and appointment of the administratrix, involving TCT Nos. 81736, 81736, and 81737,
was already before the Supreme Court.  Upon denial of this motion on 12 November 1
966, oppositors filed another mandamus action, this time against the probate court and
the Register of Deeds.  The case was docketed and given due course in this Court as G.
R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order
allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A.
del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12
pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary
public Jose Ayala; and another, dated 29 December 1960, consisting of 1 page and
written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena,
Lopez and Rosales uniformly declared that they were individually requested by
Alfonso Precilla (the late husband of petitioner special administratrix) to witness the
execution of the last will of Doña Gliceria A. del Rosario; that they arrived at the house
of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29
December 1960; that the testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked;[3]  that the will, which was
already prepared, was first read "silently' by the testatrix herself before she signed it;
[4]
 that the three witnesses thereafter signed the will in the presence of the testatrix and the
notary public and of one another.  There is also testimony that after the testatrix and the
witnesses to the will acknowledged the instrument to be their voluntary act and deed, the
notary public asked for their respective residence certificates which were handed to him
by Alfonso Precilla, clipped together;[5] that after comparing them with the numbers
already written on the will, the notary public filled in the blanks in the instrument with
the date, 29 January 1960, before he affixed his signature and seal thereto.  [6] They also
testified that on that occasion no pressure or influence has been exerted by any person
upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla In the signing of this
1960 will are evident from the records.  The will appeared to have been prepared by one
who is not conversant with the spelling of Tagalog words, and it has been shown that
Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent.[7] The wit-
nesses to the will, two of whom are fellow Visayans,[8] admitted their relationship or
closeness to Precilla.[9] It was Precilla who instructed them to go to the house
of Gliceria del Rosario on 29 December 1960 to witness an important document,[10] and
who took their residence certificates from them a few days before the will was signed.
[11]
 Precilla had met the notary 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 where the
signing of the document took place;[12] then he fetched witness Decena from the latter's
haberdashery shop a few doors away and brought him to the house of the testatrix. [13] And
when the will was actually executed, Precilla was present.[14]

The oppositors-appellants in the present case, however, challenging the correctness of the

probate court's ruling, maintain that on 29 December 1960 the eyesight of Gliceria del
Rosario was so poor and defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and
illuminating.  Said opthalmologist, whose expertise was admitted by both parties,
testified, among other things, that when Doña Gliceria del Rosario saw him for
consultation on 11 March 1960 he found her left eye to have cataract (opaque lens),
[15]
 and that it was "above normal in pressure", denoting a possible glaucoma, a disease
that leads to blindness.[16] As to the condition of her right eye, Dr. Tamesis declared:

Q    But is there anything here in the entry appearing in the other documents
Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the condition of
the vision of the patient as to the right eye?
"A    Under date of August 30, 1960, is the record of refraction, that is setting of
glass by myself which showed that the right eye with my prescription of glasses had a
vision of 20 over 60 (20/60) and for the left eye with her correction 20 over 300
(20/300).
 "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)?
"A    It meant that that eye at least would be able to recognize objects or persons
at a minimum distance of twenty feet.
"Q   But would that grade enable the patient to read print?
"A    Apparently that is only a record for distance vision, for distance sight, not for
near."
       (pages 20-21, t.s.n., hearing of 23 March 1966 )

The records also show that although Dr. Tamesis operated on the left eye of the decedent
at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, in spite of the glasses,
her vision was only "counting fingers"[17] at five feet. The cross-examination of the doctor
further elicited the following responses:

"Q   After she was discharged from the hospital you prescribed lenses for her, or
glasses?
"A    After her discharge from the hospital, she was coming to my clinic for further
examination and then sometime later glasses were prescribed.
xxxxx             xxxxx               xxxxx               xxxxx
"Q   And the glasses prescribed by you enabled her to read, Doctor?
"A    As far as my record is concerned, with the glasses for the left eye which I
prescribed - the eye which l operated - she could see only forms but not read.  That is on
the left eye.
" Q How about the right eye?
"A    The same, although the vision on the right eye is even better than the left
eye." (pages 34, 35, t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November

1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had been
under medical supervision up to 1963 with apparently good vision", the doctor had this to
say:

"Q   When you said that she had apparently good vision you mean that she was
able to read?
"A    No, not necessarily, only able to go around, take care of herself, and
see.  This I can tell you, this report was made on pure recollections and I recall she was
using her glasses although I recall also that we have to give her medicines to improve
her vision, some medicines to improve her identification some more.
xxxxx             xxxxx               xxxxx               xxxxx
 “Q   What about the vision in the right eye, was that corrected by the glasses?
"A    Yes, with the new prescription which I issued on 30 August 1960.  It is in the
clinical record.
"Q   The vision in the right eye was corrected?
"A    Yes.  That is the vision for distant objects." (pages 38, 39, 40, t.s.n. ,
hearing  of 23 March 1966).

The foregoing testimony of the opthalmologist who treated the deceased and, therefore,

has first hand knowledge of the actual condition of her eyesight from August, 1960 up to
1963, fully establish the fact that notwithstanding the operation and removal of the
cataract in her left eye and her being fitted with aphakic lens (used by cataract patients),
her vision remained mainly for viewing distant objects and not for reading print.  Thus,
the conclusion is inescapable that with the condition of her eyesight in August, 1960, and
there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was
incapable of reading, and could not have read the provisions of the will supposedly
signed by her on 29 December 1960.  It is worth noting that the instrumental witnesses
stated that she read the instrument "silently" (t.s.n., pages 164-165), which is a conclusion
and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of
the will, Exhibit “D”, acquires striking significance.  Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed together into a
single sheet of paper, so much so that the words had to be written very close to the top,
bottom and two sides of the paper; leaving no margin whatsoever; the word "and" had to
be written by the symbol "&", apparently to save on space.  Plainly, the testament was not
prepared with any regard for the defective vision of Doña Gliceria.  Further,
typographical errors like "HULINH" for "HIRING" (last), “Alfonsa” for "Alfonso",
"MERCRDRS" for "MERCEDES", "instrumrntal" for "Instrumental", and
"acknowIrdged" for "acknowledge", remained uncorrected, thereby indicating that the
execution thereof must have been characterized by haste.  It is difficult to understand that
so important a document containing the final, disposition of one's wordly possessions
should be embodied in an informal and untidily written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so.  The record is thus convincing that the supposed
testatrix could not have physically read or understood the alleged testament, Exhibit "D",
and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers

and attend to kitchen tasks shortly prior to the alleged execution of the testament, Exhibit
"D", as appears from the photographs, Exhibits "E" to "E-13", in no way proves that she
was able to read a closely typed page, since the acts shown do not require vision at close
range.  It must be remembered that with the natural lenses removed, her eyes had lost the
power of adjustment to near vision, the substituted glass lenses being rigid and
uncontrollable by her.  Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances.  Writing or signing of one's name,
when sufficiently practiced, becomes automatic, so that one only to have a rough
indication of the place where the signature is to be affixed in order to be able to write
it.  Indeed, a close examination of the checks, amplified in the photograph, Exhibit ''C'' et
seq., reinforces the contention of oppositors that the alleged testatrix could not see at
normal reading distance: the signatures in the checks are written far above the printed
base lines, and the names of the payees as well as the amounts written do not appear to be
in the handwriting of the alleged testatrix, being in a much firmer arid more fluid hand
than hers.

Thus, for all intents and purposes of the rules on probate, the deceased Gliceria del
Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due
execution of her will would have required observance of the provisions of Article 808 of
the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one
of the subscribing witnesses, and again, by the notary public before whom the will is
acknowledged."

The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), [18] is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with
his wishes.  That the aim of the law is to insure that the dispositions of the will are
properly communicated to and understood by the handicapped testator, thus making them
truly reflective of his desire, is evidenced by the requirement that the will should be read
to the latter, not only once but twice, by two different persons, and that the witnesses
have to act within the range of his (the testator's) other senses.[19]

In connection with the will here in question, there is nothing in the records to show that
the above requisites have been complied with.  Clearly, as already stated, the 1960 will
sought to be probated suffers from infirmity' that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against the
denial by the probate court of their petition for the removal of Consuelo Gonzales Vda,
de Precilla as special administratrix of the estate of the deceased Doña Gliceria (Petition,
G. R. No. L-26615, Annex"B").

The oppositors' petition was based allegedly on the existence in the

special administratrix of en interest adverse to that of the estate.  It was their contention
that through fraud her husband had caused the deceased Gliceria del Rosario to execute a
deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed
unto said Alfonso D, Precilla, married to Consuelo Gonzales y Narciso, the ownership of
3 parcels of land and the improvements thereon, assessed at P334.050.00, for the sum of
P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "F",
Petition) reasoned out that since the properties were already sold they no longer form part
of the estate. The conflict of interest would not be between the estate and third parties,
but among the different claimants of said properties, in which case, according to the
court, the participation of the special administratrix in the action for annulment that may
be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was
precisely the validity of the conveyance or sale of the properties.  In short, if proper, the
action for annulment would have to be undertaken on behalf of the estate by the
special administratrix, affecting as it does the property or rights of the deceased.[20] For
the rule is that only where there is no special proceeding for the settlement of the estate of
the deceased may the legal heirs commence an action arising out of a right belonging to
their ancestor.[21]

There is no doubt that to settle the question of the due execution and validity of the deed
of sale, an ordinary and separate action would have to be instituted, the matter not falling
within the competence of the probate court.[22]  Considering the facts then before it, i.e.,
the alleged deed of sale having been executed by Gliceria del Rosario on 10 January
1961, when she was already practically blind; and that the consideration of P30,000.00
seems to be unconscionably small for properties with a total assessed value of
P334,050.00, there was likelihood that a case for annulment might indeed be filed against
the estate or heirs of Alfonso Precilla.  And the administratrix, being the widow and heir
of the alleged transferee, cannot be expected to sue herself in an action to recover
property that may turn out to belong to the estate.22a Not only this, but the conduct of the
special administratrix in securing new copies of the owner's duplicates of TCT Nos.
66201, 66202, and 66204, without the court's knowledge or authority, and on the pretext
that she needed them in the preparation of the inventory of the estate, when she must
have already known by then that the properties covered therein were already "conveyed"
to her husband by the deceased, being the latter's successor, and having the contract bind
the land through issuance of new titles in her husband's name, cannot but expose her to
the charge of unfitness or unsuitableness to discharge the trust, justifying her removal
from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors' motion to require
the Hongkong and Shanghai Bank to report all withdrawals made against the funds of the
deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens notice
on TCT Nos. 81735, 81736 and 31737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could
not have taken action on the complaint against the alleged withdrawals from the bank
deposits of the deceased, because as of that time the court had not yet been apprised that
such deposits exist.  Furthermore, as explained by the special administratrix in her
pleading of 30 October 1965, the withdrawals referred to by the oppositors could be those
covered by checks issued in the name of Gliceria del Rosario during her lifetime
but cleared only after her death.  That explanation, which not only appears plausible but
has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in
connection with the issuance of the order here in question.

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 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 of possession of (such) real property",[23] In the case at bar, the pending action
which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is
the mandamus proceeding filed in this Court (G.R. No. L-26615).  As previously
discussed in this opinion, however, that case is concerned merely with the correctness of
the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda.
de Precilla as special adrministratrix of the estate of the late Gliceria del Rosario.  In
short, the issue in controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not involve 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 such case (L-26615) is not en action that can properly
be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate
the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside.  The
petition in G. R. No. L-26615 being meritorious, the appealed order is set aside and the
court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla,
and appoint one of the heirs intestate of the deceased Doña Gliceria Avelino del Rosario,
as special administrator for the purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late Alfonso D. Precilla.  And in Case
G. R. No. L-26864 petition is dismissed.  No costs.

FIRST DIVISION
[ G.R. No. 74695, September 14, 1993 ]
IN THE MATTER OF THE PROBATE OF THE LAST WILL AND
TESTAMENT OF THE DECEASED BRIGIDO ALVARADO, CESAR
ALVARADO, PETITIONER, VS. HON. RAMON G. GAVIOLA, JR.,
PRESIDING JUSTICE, HON. MA. ROSARIO QUETULIO LOSA AND HON.
 LEONOR INES LUCIANO, ASSOCIATE JUSTICES, INTERMEDIATE
APPELLATE COURT, FIRST DIVISION (CIVIL CASES), AND BAYANI MA.
RINO, RESPONDENTS.

DECISION

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986  of the First Civil Cases
[1]

Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed
the Order dated 27 June 1983  of the Regional Trial Court of Sta. Cruz, Laguna,
[2]

admitting to probate the last will and testament  with codicil  of the late Brigido
[3] [4]

Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled
"Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time awaiting probate before
Branch of the Regional Trial Court of Sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged
document, read the same aloud in the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the reading with their own
respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9

December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre
5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial
will to generate cash for the testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case
of the notarial will, the testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his presence and in the presence of
the three instrumental witnesses (same as those of the notarial will) and the notary public
who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna.  Petitioner, in turn, filed an
[5]

Opposition on the following grounds: that the will sought to be probated was not

executed and attested as required by law; that the testator was insane or
otherwise mentally incapacitated to make a will at the time of its execution due to senility
and old age; that the will was executed under duress, or influence of fear or threats; that it
was procured by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the signature of
the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the

Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made
to respondent court. The main thrust of the appeal was that the deceased was blind within
the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto
were executed; that since the reading required by Art. 808 of the Civil Code was
admittedly not complied with, probate of the deceased's last will and codicil should have
been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the reading requirement of Art. 808
was substantially complied with when both documents were read aloud to the testator
with each of the three instrumental witnesses and the notary public following the reading
with their respective copies of the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was substantial compliance since
its purpose of making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of
Art. 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the
double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was
not totally blind at the time the will and codicil were executed. However, his vision on
both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma
which he had been suffering from for several years and even prior to his first consultation
with an eye specialist on 14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a

"blind" testator under Art. 808 which reads:

"Art. 808. If the testator is blind, the will shall be read to him twice; once, by one
of the subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.”

Petitioner contends that although his father was not totally blind when the will and codicil
were executed, he can be so considered 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
issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine
Eye Research institute),  the contents of which were interpreted in layman's terms by Dr.
[6]

Ruperto Roasa, whose expertise was admitted by private respondent.  Dr. Roasa
[7]

explained that although the testator could visualize fingers at three (3) feet, he could no
longer read either printed or handwritten matters as of 14 December 1977, the day of his
first consultation.
[8]

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the
testator could still read on the day the will and the codicil were executed but chose not to
do so because of "poor eyesight."  Since the testator was still capable of reading at that
[9]

time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
“poor,”  “defective,”  or “blurred”  vision making it necessary for private respondent to
[10] [11] [12]

do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez  provides an insight into the scope
[13]

of the term "blindness" as used in Art. 808, to wit:

"The rationale behind the requirement of reading the will to the testator if he
is blind or incapable of reading the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes x x x x"

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who drafted the will and
codicil did so conformably with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him an opportunity to
object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and
an instrumental witness, it was the lawyer (private respondent) who drafted the eight-
paged will and the five-paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains
that the only valid compliance is a strict compliance or compliance to the letter and since
it is admitted that neither the notary public nor an instrumental witness read the contents
of the will and codicil to Brigido, probate of the latter's will and codicil should have been
disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
testamentary privilege.[14]

In the case at bar, private respondent read the testator's will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and acknowledgement take
place. There is no evidence, and petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and communicated to the testator. On the
contrary, with respect to the “Huling Habilin,” the day of the execution was not the first
time that Brigido had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's residence precisely for the purpose
of securing his conformity to the draft.[15]

Moreover, it was not only Atty. Rino who read the documents on 5 November and 29
December 1977. The notary public and the three instrumental witnesses likewise read the
will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the documents were of his own free
will. Brigido answered in the affirmative.  With four persons following the reading word
[16]

for word with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he affirmed were in
accordance with his instructions), were the terms actually appearing on the typewritten
documents. This is especially true when we consider the fact that the three instrumental
witnesses were persons known to the testator, one being his physician (Dr. Evidente) and
another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be
strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only defeat the testator's
will.
[17]

As a final word to convince petitioner of the propriety of the trial court's Probate Order
and its affirmance by the Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan,  to wit:
[18]

"The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid the substitution of wills and testaments and
to guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's will, must
be disregarded" (underscoring supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his
"Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside for
the mere reason that a legal requirement intended for his protection was not followed
strictly when such compliance had been rendered unnecessary by the fact that the purpose
of the law, i.e., to make known to the incapacitated testator the contents of the draft of his
will, had already been accomplished. To reiterate, substantial compliance suffices where
the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court

of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this
case has remained pending, this decision is immediately executory. Costs against
petitioner.

SO ORDERED.
 [ G.R. No. 27440, December 24, 1927 ]
JOSE VILLAFLOR, PETITIONER AND APPELLANT, VS. DEOGRACIAS
TOBIAS ET AL., OPPOSITORS AND APPELLEES.

DECISION

OSTRAND, J.:

This is an appeal from a judgment denying a petition for the probate of a will
alleged to have been executed by one Gregoria Villaflor who died in the municipality of
Santo Domingo, Province of Ilocos Sur on October 7, 1925. The petition was presented
by Jose Villaflor, one of the testamentary heirs of the deceased. Pilar Villaflor,
Deogracias Tobias, and several others whose names do not appear in the record,
contested the will upon the following grounds: (1) That it was not signed by the alleged
testatrix personally though she was well able to do so at the time of the execution of the
document; (2) that said testatrix did not authorize any one to sign the alleged will in her
name; (3) that both before and after the execution of the document, Gregoria Villaflor
signed various documents by thumb marks; (4) that although it is true that the testatrix
requested that the will be prepared, she nevertheless refused to sign it because it was
contrary to her desires and instructions; (5) that subsequent to the date upon which the
alleged will was executed, Gregoria Villaflor on several occasions stated that it was not
her testament; (6) that the alleged will was not executed or signed in conformity with
the law.

The grounds upon which the court below based the rejection of the document are thus
stated in its decision.

"After a careful examination of all the evidence of record, this court is of opinion that it
has been sufficiently proved that Claro Lazo, the person who is alleged to have written
the name of the testatrix in her behalf and by her express direction, subscribed the name
and surname of the testatrix and signed the will in question without Rufino D. Soliven,
one of the attesting witnesses, being present; and that neither was said Rufino D. Soliven
present when Vicente Tacderas, one of the attesting witnesses, signed it; and lastly, when
Rufino D. Soliven signed the will the witness Vicente Tacderas was not present.

"Besides the foregoing defect, which the court believes fatal, it also finds that the will in
question, marked Exhibit B of the applicant, was typewritten on eight catalan sheets, one
separated from the others; that the attestation clause was written on a separate sheet,
marked page 9, when said clause could have been written totally or partially on page 8,
since one-half of this latter page is blank.

"In the opinion of the court, all these circumstances tend to make the authenticity and due
execution of the will in question very doubtful and suspicious. And if the testimony of the
witnesses for the opposition should be taken into account as well as the circumstance that
the testatrix Gregoria Villaflor has neither signed nor subscribed the alleged will,
notwithstanding the fact that it has been proven in the record, that on July 12, 1923, the
day on which it is alleged the said will was executed, the testatrix was in good and sound
health, although she could not walk on her own feet inasmuch as she was then suffering
from rheumatism or partial paralysis of the lower extremities, and that on July 27, and
May 25, 1923, the testatrix Gregoria Villaflor used to mark with her thumb, if she did not
sign, the document she executed, as it was proven during the trial by Exhibits 1 and 2 of
the opponents, the doubt and suspicion which this court entertains in regard to the
authenticity of the will in question, becomes a certainty that said testament is false."

We are reluctant to set aside the findings of the court below but they are, in our opinion,
so clearly without sufficient support in the record that we are constrained to reject them.
The will in question is dated July 12, 1923, and was prepared by a lawyer, Eustaquio
Gallardo, and as far as appearances go, was executed in strict compliance with the
provisions of section 618 of the Code of Civil Procedure for the execution of wills. The
testatrix's name was signed by one Claro Lazo, a clerk in the office of the municipal
treasurer of Santo Domingo, and the attesting witnesses were Vicente Tacderas,
municipal president, Rufino D. Soliven, chief of police, and Mariano Pizarro, municipal
treasurer, all of the town of Santo Domingo. The finding of the court below that the
witness Soliven was not present when Claro Lazo signed the name of the testatrix and
when Vicente Tacderas signed as witness, is based on the fact that, in testifying in this
case, Claro Lazo upon being asked to enumerate the names of the persons present at the
time of the signing of the document, omitted the name of Soliven. But it appears from the
transcript of the testimony that he afterwards corrected his original statement and testified
that Soliven, as well as the other witnesses to the will, was present while all of the
signatures were affixed. This is in harmony with the testimony of all of the instrumental
witnesses and is undoubtedly true; there is, indeed, nothing strange or unusual in a
mistake such as that made by Lazo. It may be noted that it is not disputed that the lawyer
Gallardo was present during the whole proceeding and as he appears to have possessed
full knowledge of the formal requirements for the execution of a will, it is highly
improbable that he would have allowed the will in question to be signed without the
presence of the testatrix and of all of the witnesses.

That the attestation clause of the will is written on a separate page and not on the last
page of the body of the document is, in our opinion, a matter of minor importance and is
explained by the fact that if the clause had been written on the eighth page of the will in
direct continuation of the body thereof, there would not have been sufficient space on that
page for the signatures of the witnesses to the clause. It is also to be observed that all of
the pages, including that upon which the attestation clause is written, bear the signatures
of all of the witnesses and that there is no question whatever as to the genuineness of said
signatures.

The fact that the name of the testatrix was written by another person, and that she did not
sign by thumb-mark, is easily explained and is evidently due to an attempt on the part of
the lawyer Gallardo to comply strictly with the following clause in the Spanish text of
section 618 of the Code of Civil Procedure: "Excepto en el caso a que se refiere el
articulo anterior, no sera valido para la trasmision de bienes muebles e inmuebles, ni los
gravara y afectara, ningun testamento a menos que este escrito y que haya sido firmado
por el testador, o que lleve el nombre de este, escrito por otra persona en su presencia y
bajo su direccion expresa, * * *." The making of a finger mark is not "escribir" and it
may be noted that Gallardo apparently is a good Spanish scholar; that it does not appear
that he knows the English language; and that he therefore probably used the Spanish text
of the Code.

There is some testimony on the part of the contestants to the effect that the testatrix on
various occasions, subsequent to the execution of the will, had stated that it was not in
conformity with her instructions and that it was not her will. Assuming that such
statements were made, we can give them but little importance. The testatrix was an old
woman and might well have made the statements by way of justification in conversation
with persons who considered themselves wronged by the provisions of her will, but
expressions of that kind cannot, of course, work the revocation of the document. The
testatrix lived for over two years after the will was made and had ample opportunity to
make another will if she was dissatisfied with the first.

For the reasons stated the appealed judgment is hereby reversed and it is ordered that the
document in question be admitted to probate as the last will and testament of the
deceased Gregoria Villaflor. No costs will be allowed. So ordered.

[ G. R. No. 17430, May 31, 1922 ]

IN THE MATTER OF THE ESTATE OF GERONIMA UY COQUE,
DECEASED. ANDREA UY COQUE ET AL., PETITIONERS AND
APPELLEES, VS. JUAN NAVAS L. SIOCA, SPECIAL ADMINISTRATOR OF
THE ESTATE OF GERONIMA UY COQUE, DECEASED, OPPONENT AND
APPELLANT.

DECISION
OSTRAND, J.:

This is an appeal from an order of the Court of First Instance of Samar, admitting
a will to probate.

The validity of the will is attacked on the ground that the testatrix was mentally
incapacitated at the time of its execution and on the further ground that it was not
executed in the form prescribed by section 618 of the Code of Civil Procedure as
amended by Act No. 2645.

The transcript of the testimony taken in the probate proceedings not appearing in the
record, we cannot review the findings of the court below as to the sanity of the testatrix.
This leaves for our consideration only the question as to whether the omission of certain
formalities in the execution of the will are fatal to its validity.

Section 618 of the Code of Civil Procedure as amended by Act No. 2645 reads:

"No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be written in the language or
dialect known by the testator and signed by him, or by the testator's name written by
some other 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 each
other. The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in letters placed on the upper part
of each sheet. The attestation shall state the number of sheets or pages used, upon which
the will is written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the presence
of three witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other."

The formal defects of the will in question occur in its attestation clause which, in
translation, read as follows:

"We, the undersigned witnesses of this will, state that it has been shown to us by the
testatrix as her last will and testament. And as she cannot sign her name, she asked that
Mr. Filomeno Piczon sign her name in the presence of each of us, and each of us, the
witnesses, also signed in the presence of the testatrix."

It will be noted that the attestation clause does not state the number of pages contained in
the will nor does it state that the witnesses signed in the presence of each other. Neither
do these facts appear in any other part of the will.
Statutes prescribing the formalities to be observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at page 1097, "A will must be executed in
accordance with the statutory requirements; otherwise it is entirely void. All these
requirements stand as of equal importance and must be observed, and courts cannot
supply the defective execution of a will. No power or discretion is vested in them, either
to superadd other conditions or dispense with those enumerated in the statutes."

This court has also frequently held that a will should not be probated unless in its
execution there has been a strict compliance with all the requisites prescribed in section
618 of the Code of Civil Procedure. It is true that in the case of Abangan vs. Abangan (40
Phil., 476) the court upheld the validity of a will consisting of only two pages, the first
containing all the testamentary dispositions and being signed by the testator at the bottom
and by both the testator and the witnesses in the margin, the second page containing only
the attestation clause with the signatures of the witnesses at the bottom but without
marginal signatures. The decision was based on the ground that it could not have been the
intention of the legislator to require, as an essential to the validity of the will, that all the
signatures appear twice on the same page as such a requirement would be entirely
purposeless. This decision is no doubt sound; that in statutory construction the
evident intent of the legislator controls will probably not be disputed.

But it must not be forgotten that in construing statutory provisions in regard to the formal
requisites of a will, we are seeking to ascertain the intent of the legislator and not that of
the testator; the latter's intention is frequently defeated through non-observance of the
statute.

The purpose of the Legislature in prescribing the rather strict formalities now required in
the execution of a will are clearly revealed by comparing section 618, supra, as originally
enacted with the amended section quoted above. The original section reads:

"No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other 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 each other. The attestation shall state the fact that the
testator signed the will, or caused it to be signed by some other person, at his express
direction, in the presence of three witnesses, and that they attested and subscribed it in his
presence and in the presence of each other. But the absence of such form of attestation
shall not render the will invalid if it is proven that the will was in fact signed and attested
as in this section provided."

The amendments or changes introduced by Act No. 2645 are (a) that the will must now
be executed in a language or dialect known to the testator; (b) that the testator and
witnesses must sign each page on the left margin; (c) that the pages be numbered
correlatively; (d) that the attestation clause shall state the number of sheets or pages used
in the will and (e) that it must appear from the attestation clause itself that the testator and
witnesses signed in the form and manner required by law and that this can no longer be
proven by evidence aliunde.

The changes mentioned under (d) and (e) are the only ones which need be considered in
the present case. The purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be so prepared that the removal
of a sheet would completely change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such removal might be effected by
taking out the sheet and changing the numbers at the top of the following sheets or pages.
If, on the other hand, the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages and the forging of
the signatures of the testator and witnesses in the margin, a matter attended with much
greater difficulty.

The purpose of the new requirement that it must appear in the attestation clause that the
testator and the witnesses signed in the presence of each other and that the fact cannot be
proved by evidence aliunde is, perhaps, less obvious, but, in view of the well-known
unreliability of oral evidence, it is clear that a statement in the attestation clause will
afford more satisfactory evidence of the fact to be proven. In any event, the fact that the
old rule in regard to admissibility of oral evidence to prove that the testator and witnesses
signed in the manner prescribed by the law evidently had been found unsatisfactory and
was deliberately varied by amendment shows that the Legislature attached importance to
the matter. If so, the courts will not be justified in enervating the amendment by too
liberal a construction.

We therefore hold that the two defects noted in the attestation clause of the alleged will
renders it null and void and that it cannot be admitted to probate. The order appealed
from is reversed with the costs against the appellee. So ordered.

Araullo, C. J., Avanceña, Villamor, and Romualdez, JJ., concur.

SECOND DIVISION
[ G.R. No. 103554, May 28, 1993 ]
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
REPRESENTED HEREIN BY HIS ATTORNEY-IN-FACT, ARMSTICIA*
ABAPO VELANO, AND CONSESO CANEDA, REPRESENTED HEREIN BY
HIS HEIRS, JESUS CANEDA, NATIVIDAD CANEDA AND ARTURO
CANEDA, PETITIONERS, VS. HON. COURT OF APPEALS AND WILLIAM
CABRERA, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MATEO
CABALLERO, RESPONDENTS.

DECISION

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is
the issue of whether or not the attestation clause contained in the last will and testament
of the late Mateo Caballero complies with the requirements of Article 805, in relation to
Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at
his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his
lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will.  It was declared therein, among other things, that the testator
[1]

was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G.
Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. [2]

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed
as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of
Cebu seeking the probate of his last will and testament. The probate court set the petition
for hearing on August 20, 1979 but the same and subsequent scheduled hearings were
postponed for one reason or another. On May 29, 1980, the testator passed away before
his petition could finally be heard by the probate court.  On February 25, 1981, Benoni
[3]

Cabrera, one of the legatees named in the will, sought his appointment as special
administrator of the testator's estate, the estimated value of which was P24,000.00, and he
was so appointed by the probate court in its order of March 6, 1981. [4]

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,

instituted a second petition, entitled “In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition for intestate proceedings consolidated with Special Proceeding No.
3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the
probate of the testator's will and the appointment of a special administrator for his estate. [5]

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch
XV of the Regional Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the
return of the records of Special Proceeding No. 3965-R to the archives since the testate
proceedings for the probate of the will had to be heard and resolved first. On March 26,
1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the conclusion of the probate proceedings. [6]

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the ground
that on the alleged date of its execution, the testator was already in a poor state of health
such that he could not have possibly executed the same. Petitioners likewise reiterated the
issue as to the genuineness of the signature of the testator therein.
[7]

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public,
Atty. Filoteo Manigos, testified that the testator executed the will in question in their
presence while he was of sound and disposing mind and that, contrary to the assertions of
the oppositors, Mateo Caballero was in good health and was not unduly influenced in any
way in the execution of his will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator and of each other. The other
two attesting witnesses were not presented in the probate hearing as they had died by
then.[8]

On April 5, 1988, the probate court rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero, on the ratiocination that:

"x x x The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed this Last Will and
Testament now marked Exhibit ‘C’ on December 5, 1978. Moreover, the fact that it was
Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit 'D' clearly underscores the
fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit ‘C' examined
by a handwriting expert of the NBI but it would seem that despite their avowal and
intention for the examination of this signature of Mateo Caballero in Exhibit ‘C', nothing
came out of it because they abandoned the idea and instead presented Aurea Caballero
and Helen Caballero Campo as witnesses for the oppositors.
 "All told, it is the finding of this Court that Exhibit ‘C' is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with all the
requisites of law."[9]

Undaunted by said judgment of the probate court, petitioners elevated the case to the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation clause is fatally defective since
it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision  affirming that of the
[10]

trial court, and ruling that the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code, thus:

"The question therefore is whether the attestation clause in question may be

considered as having substantially complied with the requirements of Art. 805 of the
Civil Code. What appears in the attestation clause which the oppositors claim to be
defective is ‘we do certify that the testament was read by him and the testator, Mateo
Caballero, has published unto us the foregoing will consisting of THREE PAGES, including
the acknowledgment, each page numbered correlatively in letters on the upper part of
each page, as his Last Will and Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of us’ (underlining
supplied).
"To our thinking, this is sufficient compliance and no evidence need be presented
to indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of the
law would have it that the testator signed the will ‘in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.’ If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law. " [11]

Petitioners moved for the reconsideration of said ruling of respondent court, but the same
was denied in the latter's resolution of January 14, 1992,  hence this appeal now before
[12]

us. Petitioners assert that respondent court has ruled upon said issue in a manner not in
accord with the law and the settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter explain, after
some prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death.  Under the Civil Code, there are two kinds of wills which a testator
[13]

may execute.  The first kind is the ordinary or attested will, the execution of which is
[14]

governed by Articles 804 to 809 of the Code. Article 805 requires that:

"Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
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 page thereof, or caused
some other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them."

In addition, the ordinary will must be acknowledged before a notary public by the testator
and the attesting witnesses,  hence it is likewise known as a notarial will. Where the
[15]

testator is deaf or a deaf-mute, Article 807 requires that he must personally read the will,
if able to do so. Otherwise, he should designate two persons who will read the will and
communicate its contents to him in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged. [16]

The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the hand of the testator himself. This kind of will,
unlike the ordinary type, requires no attestation by witnesses. A common requirement in
both kinds of wills is that they should be in writing and must have been executed
in a language or dialect known to the testator.[17]
However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause
likewise need not even be known to the attesting witnesses.  The last paragraph of
[18]

Article 805 merely requires that, in such a case, the attestation clause shall be interpreted
to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the manner of
the execution of the same.  It is a separate memorandum or record of the facts
[19]

surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law has
been observed.  It is made for the purpose of preserving in a permanent form a record of
[20]

the facts that attended the execution of a particular will, so that in case of failure of the
memory of the attesting witnesses, or other casualty, such facts may still be proved. [21]

Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will,  should state (1) the number of pages used upon
[22]

which the will is written; (2) that the testator signed, or expressly caused another to sign,
the will and every page thereof in the presence of the attesting witnesses; and (3) that
the attesting witnesses witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in the presence
of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the
will is written is to safeguard against possible interpolation or omission of one or some of
its pages and to prevent any increase or decrease in the pages;  whereas the subscription
[23]

of the signatures of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very same
instrument executed by the testator and attested to by the witnesses. [24]

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.  The attestation clause,
[25]

therefore, provides strong legal guaranties for the due execution of a will and to insure
the authenticity thereof.  As it appertains only to the witnesses and not to the testator, it
[26]

need be signed only by them.  Where it is left unsigned, it would result in the
[27]

invalidation of the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and the witnesses. [28]

In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
 "The underlying and fundamental objectives 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 with respect to the
formalities in the execution of wills. x x x "
[29]

2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator.
The attestation clause in question, on the other hand, is recited in the English language
and is likewise signed at the end thereof by the three attesting witnesses thereto.  Since it
[30]

is the proverbial bone of contention, we reproduce it again for facility of reference:

"We, the undersigned attesting Witnesses, whose Residences and postal

addresses appear on the Opposite of our respective names, we do hereby certify that
the Testament was read by him and the testator, MATEO CABALLERO, has published
unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment,
each page numbered correlatively in letters on the upper part of each page, as his Last
Will and Testament and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the presence of the said
testator and in the presence of each and all of us. "

It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of the senses, while subscription is
the act of the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to constitute an actual
and legal publication; but to subscribe a paper published as a will is only to write on the
same paper the names of the witnesses, for the sole purpose of identification. [31]

In Taboada vs. Rosal,  we clarified that attestation consists in witnessing the testator's
[32]

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. On the other hand, 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. As it involves a mental act, there would be no means, therefore,
of ascertaining by a physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is substantially
expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of

the express requirements of the third paragraph of Article 805 of the Civil Code for
attestation clauses, fails to specifically state the fact that the attesting witnesses witnessed
the testator sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator and of each
other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is
the fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of
each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided
for his signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in
the presence of each and all of us" may, at first blush, appear to likewise signify and refer
to the witnesses, it must, however, be interpreted as referring only to the testator signing
in the presence of the witnesses since said phrase immediately follows the words "he has
signed the same and every page thereof, on the spaces provided for his signature and on
the left hand margin." What is then clearly lacking, in the final logical analysis, is the
statement that the witnesses signed the will and ever page thereof in the presence of the
testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in the disallowance of the will that is
here sought to be admitted to probate. Petitioners are correct in pointing out that the
aforestated defect in the attestation clause obviously cannot be characterized as merely
involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision
thereon in the Civil Code, to wit:

"Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with all the requirements of article
805" (Underscoring supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and
at the left margin of each page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witnesses affixed their respective signatures
in the presence of the testator and of each other since, as petitioners correctly observed,
the presence of said signatures only establishes the fact that it was indeed signed, but it
does not prove that the attesting witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed to be one act so that where
the testator and the witnesses sign on various days or occasions and in various
combinations, the will cannot be stamped with the imprimatur of effectivity. [33]

We believe that the following comment of former Justice J.B.L. Reyes  regarding Article
[34]

809, wherein he urged caution in the application of the substantial compliance rule
therein, is correct and should be applied in the case under consideration, as well as to
future cases with similar questions:

"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 are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings." (Emphasis
ours.)

3. We stress once more that under Article 809, the defects or imperfections must only be
with respect to the form of the attestation or the language employed therein. Such defects
or imperfections would not render a will invalid should it be proved that the will was
really executed and attested in compliance with Article 805. In this regard, however, the
manner of proving the due execution and attestation has been held to be limited to merely
an examination of the will itself without resorting to evidence aliunde, whether oral or
written.

The foregoing considerations do not apply where the attestation clause totally omits the

fact that the attesting witnesses signed each and every page of the will in the presence of
the testator and of each other.  In such a situation, the defect is not only in the form or
[35]

the language of the attestation clause but the total absence of a specific element required
by Article 805 to be specifically stated in the attestation clause of a will. That is precisely
the defect complained of in the present case since there is no plausible way by which we
can read into the questioned attestation clause any statement, or an implication thereof,
that the attesting witnesses did actually bear witness to the signing by the testator of the
will and all its pages and that said instrumental witnesses also signed the will and every
page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked or

relied on by respondents since it presupposes that the defects in the attestation clause can
be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied with in the execution of the will. In
other words, the defects must be remedied by intrinsic evidence supplied by the will
itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied only by extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from which such facts
may be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by indirection what in law he
cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of
views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in Section 618 of Act No. 190,
the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act No. 190 and the amendment thereto
were practically reproduced and adopted in the Civil Code.

One view advanced the liberal or substantial compliance rule. This was first laid down in
the case of Abangan vs. Abangan,  where it was held that the object of the solemnities
[36]

surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also emphasized that one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will, hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded. The
subsequent cases of Avera vs. Garcia,  Aldaba vs. Roque,  Unson vs. Abella,  Pecson
[37] [38] [39]

vs. Coronel,  Fernandez vs. Vergel de Dios, et al.,  and Nayve vs. Mojal, et al.   all
[40] [41] [42]

adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,  In re Will of Andrada,  Uy Coque vs. Sioca,   In re Estate of Neumark,
[43] [44] [45]

 and Sano vs. Quintana.

[46] [47]

Gumban vs. Gorecho, et al.,  provided the Court with the occasion to clarify the
[48]

seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the
attestation clause had failed to state that the witnesses signed the will and each and every
page thereof on the left margin in the presence of the testator. The will in question was
disallowed, with these reasons therefor:

"In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the Matter of the
(E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921],
42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque, ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve
vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast
and, if possible, conciliate, the last two decisions cited by opposing counsel, namely,
those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
"In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a defect
annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve
vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation clause must state the
fact that the testator and the witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It
was also held that the fact that the testator and the witnesses signed each and every
page of the will can be proved also by the mere examination of the signatures appearing
on the document itself, and the omission to state such evident facts does not invalidate
the will.
"It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme
type, it would be impossible to reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we
reverse.
"In resolving  this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal decision was concurred in by only four members
of the court, less than a majority, with two strong dissenting opinions; the Quintana
decision was concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was promulgated in December,
1924, while the Quintana decision was promulgated in December 1925; the Quintana
decision was thus subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable provisions of the law.
"The right to dispose of property by will is governed entirely by statute. The law
of the case is here found in section 61 of the Code of Civil Procedure, as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in
section 61, as amended that 'No will * * * shall be valid * * * unless * * *.' It is further
provided in the same section that 'The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the testator and of each other.'
Codal section 634 provides that 'The will shall be disallowed in either of the following
cases: 1. If not executed and attested as in this Act provided.’ The law not alone
carefully makes use of the imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the province of the courts to
disregard the legislative purpose so emphatically and clearly expressed.
"We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and,
to the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra." (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that
once more appeared to revive the seeming diversity of views that was earlier threshed out
therein. The cases of Quinto vs. Morata,  Rodriguez vs. Alcala,  Echevarria vs.
[49] [50]

Sarmiento,  and Testate Estate of Toray  went the way of the ruling as restated
[51] [52]

in Gumban. But De Gala vs. Gonzales, et al.,  Rey vs. Cartagena,  De Ticson vs. De
[53] [54]

Gorostiza,  Sebastian vs. Panganiban,  Rodriguez vs. Yap,  Grey vs. Fabia,  Leynez
[55] [56] [57] [58]

vs. Leynez,  Martir vs. Martir,  Alcala vs. De Villa,  Sabado vs. Fernandez,  Mendoza
[59] [60] [61] [62]

vs. Pilapil,  and Lopez vs. Liboro,  veered away from the strict interpretation rule and
[63] [64]

established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code
Commission:

"The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil Procedure
as amended by Act No. 2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his property.
"However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution of wills.
This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No.
46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
"In the above mentioned decisions of our Supreme Court, it has practically gone
back to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is recommended, which reads:

'ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the requirements of article 829.'"[65]

The so-called liberal rule, the Court said in Gil vs. Murciano,  "does not offer any puzzle
[66]

or difficulty, nor does it open the door to serious consequences. The later decisions do tell
us when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into
its confines, to ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.
[67]

WHEREFORE, the petition is hereby GRANTED and the impugned decision of

respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the Matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said
decedent.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 189984, November 12, 2012 ]
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST
WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ,
PETITIONER, VS. DIANA JEANNE LOPEZ, MARYBETH DE LEON AND
VICTORIA L. TUAZON, RESPONDENTS.

DECISION

PERLAS-BERNABE, J.:

This Petition for Review on Certiorari assails the March 30, 2009 Decision[1] and
October 22, 2009 Resolution[2] of the Court of Appeals (CA) in CA-G.R. CV No. 87064
which affirmed the August 26, 2005 Decision[3] of the Regional Trial Court of Manila,
Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate of the Last Will and
Testament of Enrique S. Lopez.

The Factual Antecedents

On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and
their four legitimate children, namely, petitioner Richard B. Lopez (Richard) and the
respondents Diana Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and Victoria L.
Tuazon (Victoria) as compulsory heirs. Before Enrique’s death, he executed a Last Will
and Testament[4] on August 10, 1996 and constituted Richard as his executor and
administrator.

On September 27, 1999, Richard filed a petition for the probate of his father's Last Will
and Testament before the RTC of Manila with prayer for the issuance of letters
testamentary in his favor. Marybeth opposed the petition contending that the
purported last will and testament was not executed and attested as required by law,
and that it was procured by undue and improper pressure and influence on the part of
Richard.  The said opposition was also adopted by Victoria.

After submitting proofs of compliance with jurisdictional requirements, Richard

presented the attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro; Ana
Maria Lourdes Manalo (Manalo); and the notary public who notarized the will, Atty.
Perfecto Nolasco (Atty. Nolasco).  The instrumental witnesses testified that after the late
Enrique read and signed the will on each and every page, they also read and signed the
same in the latter's presence and of one another.   Photographs of the incident were
taken and presented during trial. Manalo further testified that she was the one who
prepared the drafts and revisions from Enrique before the final copy of the will was
made.

Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. 
Prior to August 10, 1996, the latter consulted him in the preparation of the subject will
and furnished him the list of his properties for distribution among his children.  He
prepared the will in accordance with Enrique's instruction and that before the latter and
the attesting witnesses signed it in the presence of one another, he translated the will
which was written in English to Filipino and added that Enrique was in good health and
of sound mind at that time.

On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon
(Paraon), Officer-in-Charge of the Notarial Section, Office of the Clerk of Court, RTC,
Manila.  His testimony centered mainly on their findings that Atty. Nolasco was not a
notary public for the City of Manila in 1996, which on cross examination was clarified
after Paraon discovered that Atty. Nolasco was commissioned as such for the years 1994
to 1997.

Ruling of the RTC

In the Decision dated August 26, 2005,[5] the RTC disallowed the probate of the will for
failure to comply with Article 805 of the Civil Code which requires a statement in the
attestation clause of the number of pages used upon which the will is written.  It held
that while Article 809 of the same Code requires mere substantial compliance of the
form laid down in Article 805 thereof, the rule only applies if the number of pages is
reflected somewhere else in the will with no evidence aliunde or extrinsic evidence
required. While the acknowledgment portion stated that the will consists of 7 pages
including the page on which the ratification and acknowledgment are written, the RTC
observed that it has 8 pages including the acknowledgment portion.  As such, it
disallowed the will for not having been executed and attested in accordance with law.

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated
October 26, 2005.[6]

Ruling of the Court of Appeals

On March 30, 2009, [7] the CA issued the assailed decision dismissing the appeal.  It held
that the RTC erroneously granted Richard's appeal as the Rules of Court is explicit that
appeals in special proceedings, as in this case, must be made through a record on
appeal.  Nevertheless, even on the merits, the CA found no valid reason to deviate from
the findings of the RTC that the failure to state the number of pages of the will in the
attestation clause was fatal.  It noted that while Article 809 of the Civil Code sanctions
mere substantial compliance with the formal requirements set forth in Article 805
thereof, there was a total omission of such fact in the attestation clause. Moreover,
while the acknowledgment of the will made mention of “7 pages including the page on
which the ratification and acknowledgment are written,” the will had actually 8 pages
including the acknowledgment portion thus, necessitating the presentation of
evidence aliunde to explain the discrepancy.  Richard's motion for reconsideration from
the decision was likewise denied in the second assailed Resolution [8] dated October 22,
2009.

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of
the Civil Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.

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 page thereof, or caused some other
person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them. (underscoring supplied)

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of Article
805.

The law is clear that the attestation must state the number of pages used upon which
the will is written. The purpose of the law is to safeguard against possible interpolation
or omission of one or some of its pages and prevent any increase or decrease in the
pages.[9]

While Article 809 allows substantial compliance for defects in the form of the
attestation clause, Richard likewise failed in this respect.  The statement in the
Acknowledgment portion of the subject LAST WILL AND TESTAMENT that it “consists of
7 pages including the page on which the ratification and acknowledgment are
written”[10] cannot be deemed substantial compliance. The will actually consists of 8
pages including its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence aliunde.[11]   On
this score is the comment of Justice J.B.L. Reyes regarding the application of Article 809,
to wit:

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 are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized.  All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded.  But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.[12] (Emphasis
supplied)

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly
ruled that Richard pursued the wrong mode of appeal as Section 2(a), Rule 41 of the
Rules of Court explicitly provides that in special proceedings, as in this case, the appeal
shall be made by record on appeal.

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.

FIRST DIVISION
[ G.R. No. L-38338, January 28, 1985 ]
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS
AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE JESUS, PETITIONERS, VS. ANDRES R. DE JESUS, JR., RESPONDENT.

DECISION

GUTIERREZ, JR., J.:

 This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the
probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de
Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother
of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus.

On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the
holographic Will on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he

found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21,
22, 23 and 24 thereof, a letter-will addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61" and states: "This is my will which I want to be respected although it is
not written by a lawyer. x x x”

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB. /
61" is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and positively identified her signature. They
further testified that their deceased mother understood English, the language in which
the holographic Will is written, and that the date "FEB. / 61" was the date when said
Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because - (a) it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix
acted by mistake and/or did not intend, nor could have intended the said Will to be her
last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that
the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month, and year of its execution and that this should be
strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:
"WHEREFORE, the document purporting to be the holographic Will of Bibiana
Roxas de Jesus, is hereby disallowed for not having been executed as required by the
law. The order of August 24, 1973 is hereby set aside."
The only issue is whether or not the date "FEB. / 61" appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the
Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed."
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his holographic Will the
"year, month, and day of its execution", the present Civil Code omitted the phrase "Año,
mes y dia" and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will
is void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and
Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that
the required date includes the year, month, and day, and that if any of these is wanting,
the holographic Will is invalid. The respondent further contends that the petitioner
cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are
strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application
of the statutory requirements regarding the due execution of Wills. We should not
overlook the liberal trend of the Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intestacy -
"The underlying and fundamental objectives permeating the provisions of 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 with respect to the formalities in
the execution of wills." (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos
(27 SCRA 327) he emphasized that:
xxx                xxx                   xxx.

"x x x The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better than
that which the law can make. For this reason, intestate succession is nothing more than
a disposition based upon the presumed will of the decedent."
Thus, the prevailing policy is to require satisfaction of the legal requirements in
order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will has
been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be
admitted to probate (Rey v. Cartagena, 56 Phil. 282). Thus,
xxx                xxx                   xxx
"x x x More than anything else, the facts and circumstances of record are to be con-
sidered in the application of any given rule. If the surrounding circumstances point to a
regular execution of the will, and the instrument appears to have been executed
substantially in accordance with the requirements of the law, the inclination should, in
the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission
to probate, although the document may suffer from some imperfection of language, or
other non-essential defect. x x x" (Leynez v. Leynez, 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded
by this Court in Abangan v. Abangan, 40 Phil. 476) where we ruled that:
"The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. x x x"
In particular, a complete date is required to provide against such contingencies as
that of two competing Wills executed on the same day, or of a testator becoming insane
on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wills and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due execution. All the children
of the testatrix agree on the genuineness of the holographic Will of their mother and
that she had the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB. / 61" appearing on the holographic Will is
not sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB. / 61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The Order appealed from

is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

SECOND DIVISION
[ G.R. NOs. 83843-44, April 05, 1990 ]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR, SAGRADO LABRADOR (DECEASED)
SUBSTITUTED BY ROSITA LABRADOR, ENRICA LABRADOR, AND
CRISTOBAL LABRADOR, PETITIONERS-APPELLANTS, VS. COURT OF
APPEALS,[1]

GAUDENCIO LABRADOR, AND JESUS LABRADOR, RESPONDENTS-

APPELLEES.

DECISION

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one
Melecio Labrador is dated, as provided for in Article 810[2] of the New Civil Code.

The antecedent and relevant facts are as follows:  On June 10, 1972, Melecio Labrador
died in the Municipality of Iba, province of Zambales, where he was residing, leaving
behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No.
P-1652, and the following heirs, namely:  Sagrado, Enrica, Cristobal, Jesus, Gaudencio,
Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica
Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate
docketed as Special Proceeding No. 922-I of the alleged holographic will of the late
Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by
his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that
the will has been extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the consideration of Six
Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and
that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. 
Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five
Thousand (P5,000) Pesos.  (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and
Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land,
which Sagrado allegedly had already acquired by devise from their father Melecio
Labrador under a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the fact that the
aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court
rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute Sale.  The court a quo
had also directed the respondents (the defendants in Civil Case no. 934-I) to reimburse
to the petitioners the sum of P5,000.00 representing the redemption price for the
property paid by the plaintiff-petitioner Sagrado with legal interest thereon from
December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March 10,
1988 modified said joint decision the court a quo by denying the allowance of the
probate of will for being undated and reversing the order of reimbursement. 
Petitioners’ Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988.  Hence, this petition.

Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF
THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT
DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE
REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:

"ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO LABRADOR WRITTEN IN

ILOCANO

BY ATTY. FIDENCIO L. FERNANDEZ

I - First Page

This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.

And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother.  That because it is now the time for me
being now ninety three (93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among themselves, those among brothers
and sisters, for it is I myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and sisters.

II - Second Page

And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or instruction of mine is the matter to
be followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father.

Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my children, and that they will be
in good relations among themselves, brothers and sisters;

And those improvements and fruits of the land, mangoes, bamboos, and all coconut
trees and all others like the other kind of bamboo by name of Bayog, it is their right to
get if they so need, in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and sisters.

III - THIRD PAGE

And that referring to the other places of property, where the said property is located,
the same being the fruits of our earnings of the two mothers of my children, there shall
be equal portion of each share among themselves, and or to be benefitted with all those
property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what should be complied with, by
all the brothers and sisters, the children of their two mothers - JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL),
and he is, MELECIO LABRADOR y RALUTIN." (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with
Article 810.  It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:
"And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month of
March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed.  And the one who made this writing is no other than MELECIO
LABRADOR, their father." (underscoring supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed in
the will.  The only requirements are that the date be in the will itself and executed in the
hand of the testator.  These requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator and
his beneficiaries entered into an agreement among themselves about "the partitioning
and assigning the respective assignments of the said fishpond," and was not the date of
execution of the holographic will; hence, the will is more of an "agreement" between
the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like
the respondents.  This was thus a failure to comply with Article 783 which defines a will
as "an act whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his death."

Respondents are in error.  The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the paragraph. 
As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was executing was a will.  The act of
partitioning and the declaration that such partitioning was the testator’s instruction or
decision to be followed reveal that Melecio Labrador was fully aware of the nature of
the estate property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect.  When
private respondents sold the property (fishpond) with right to repurchase to Navat for
P5,000, they were actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void.  Petitioners, thus "redeemed" the
property from Navat for P5,000, to immediately regain possession of the property for its
disposition in accordance with the will.  Petitioners therefore deserve to be reimbursed
the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is
hereby REVERSED.  The holographic will of Melecio Labrador is APPROVED and
ALLOWED probate.  The private respondents are directed to REIMBURSE the petitioners
the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.

FIRST DIVISION
[ G.R. Nos. 75005-06, February 15, 1990 ]
JOSE RIVERA, PETITIONER, VS. INTERMEDIATE APPELLATE COURT
AND ADELAIDO J. RIVERA, RESPONDENTS.

DECISION

CRUZ, J.:

Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there
two? On May 30, 1975, a prominent and wealthy resident of that town named Venancio
Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate
son of the deceased, filed a petition for the issuance of letters of administration over
Venancio's estate. Docketed as SP No. 1076, this petition was opposed by Adelaido J.
Rivera, who denied that Jose was the son of the decedent. Adelaido averred that
Venancio was his father and did not die intestate but in fact left two holographic wills. [1] 

On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of
Angeles City, a petition for the probate of the holographic wills. Docketed as SP No.
1091, this petition was in turn opposed by Jose Rivera, who reiterated that he was the sole
heir of Venancio's intestate estate.[2] 

On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later
appointed special administrator. After joint trial, Judge Eliodoro B. Guinto found that
Jose Rivera was not the son of the decedent but of a different Venancio Rivera who was
married to Maria Vital. The Venancio Rivera whose estate was in question was married
to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no
claim to this estate because the decedent was not his father. The holographic wills were
also admitted to probate.[3]

On appeal, the decision of the trial court was affirmed by the then Intermediate Appellate
Court.[4] Its decision is now the subject of this petition, which urges the reversal of the
respondent court.
In support of his claim that he was the sole heir of the late Venancio Rivera, Jose sought
to show that the said person was married in 1928 to Maria Vital, who was his mother. He
submitted for this purpose Exhibit A, the marriage certificate of the couple and Exhibit B,
his own baptismal certificate where the couple was indicated as his parents. The
petitioner also presented Domingo Santos, who testified that Jose was indeed the son of
the couple and that he saw Venancio and Jose together several times.[5] Jose himself
stressed that Adelaido considered him a half-brother and kissed his hand as a sign of
respect whenever they met. He insisted that Adelaido and his brothers and sisters were
illegitimate children, sired by Venancio with Maria Jocson.[6]

Adelaido, for his part, maintained that he and his brothers and sisters were born to
Venancio Rivera and Maria Jocson, who were legally married and lived as such for many
years. He explained that he could not present his parents’ marriage certificate because the
record of marriages for 1942 in Mabalacat were destroyed when the town was burned
during the war, as certified by Exhibit 6.[7] He also submitted his own birth certificate and
those of his sisters Zenaida and Yolanda Rivera, who were each described therein as the
legitimate children of Venancio Rivera and Maria Jocson.[8] Atty. Regalado P. Morales,
then 71 years of age, affirmed that he knew the deceased and his parents, Magno Rivera
and Gertrudes de los Reyes, and it was during the Japanese occupation that Venancio
introduced to him Maria Jocson as his wife.[9] To prove that there were in fact two
persons by the same name of Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were Magno Rivera and Gertrudes de los
Reyes,[10] as contrasted with the marriage certificate submitted by Jose, which indicated
that the Venancio Rivera subject thereof was the son of Florencio Rivera and Estrudez
Reyes.[11] He also denied kissing Jose's hand or recognizing him as a brother. [12] 

We find in favor of Adelaido J. Rivera.

It is true that Adelaido could not present his parents’ marriage certificate because, as he
explained it, the marriage records for 1942 in the Mabalacat civil registry were burned
during the war. Even so, he could still rely on the presumption of marriage, since it is not
denied that Venancio Rivera and Maria Jocson lived together as husband and wife for
many years, begetting seven children in all during that time.

According to Article 220 of the Civil Code: 

In case of doubt, all presumptions favor the solidarity of the family. Thus every
intendment of the law or fact leans toward the validity of marriage, the indissolubility of
the marriage bonds, the legitimacy of children, x x x.

The Rules of Court, in Rule 131, provides: 

SEC. 3. Disputable presumptions. — The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence: 

xxx xxx xxx

(aa) That a man and woman deporting themselves as husband and wife have entered into
a lawful contract of marriage.

By contrast, although Jose did present his parents' marriage certificate, Venancio was
described therein as the son of Florencio Rivera. Presumably, he was not the same
Venancio Rivera described in Exhibit 4, his baptismal certificate, as the son of Magno
Rivera. While we realize that such baptismal certificate is not conclusive evidence of
Venancio's filiation (which is not the issue here) it may nonetheless be considered to
determine his real identity. Jose insists that Magno and Florencio are one and the same
person, arguing that it is not uncommon for a person to be called by different names. The
Court is not convinced. There is no evidence that Venancio's father was called either
Magno or Florencio. What is more likely is that two or more persons may live at the same
time and bear the same name, even in the same community. That is what the courts below
found in the cases at bar.

What this Court considers particularly intriguing is why, if it is true that he was the
legitimate son of Venancio Rivera, Jose did not assert his right as such when his father
was still alive. By his own account, Jose supported himself — and presumably also his
mother Maria Vital - as a gasoline attendant and driver for many years. All the time, his
father was residing in the same town — and obviously prospering — and available for
support. His alleged father was openly living with another woman and raising another
family, but this was apparently accepted by Jose without protest, taking no step
whatsoever to invoke his status. If, as he insists, he and Venancio Rivera were on cordial
terms, there is no reason why the father did not help the son and instead left Jose to fend
for himself as a humble worker while his other children by Maria Jocson enjoyed a
comfortable life. Such paternal discrimination is difficult to understand, especially if it is
considered - assuming the claims to be true — that Jose was the oldest and, by his own
account, the only legitimate child of Venancio Rivera.

And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's
legitimate wife — if indeed she was — she should have objected when her husband
abandoned her and founded another family by another woman, and in the same town at
that. Seeing that the children of Maria Jocson were being raised well while her own son
Jose was practically ignored and neglected, she nevertheless did not demand for him at
least support, if not better treatment, from his legitimate father. It is unnatural for a lawful
wife to say nothing if she is deserted in favor of another woman and for a caring mother
not to protect her son's interests from his wayward father's neglect. The fact is that this
forsaken wife never demanded support from her wealthy if errant husband. She did not
file a complaint for bigamy or concubinage against Venancio Rivera and Maria Jocson,
the alleged partners in crime and sin. Maria Vital was completely passive and
complaisant.

Significantly, as noted by the respondent court, Maria Vital was not even presented at the
trial to support her son's allegations that she was the decedent's lawful wife. Jose says this
was not done because she was already old and bedridden then. But there was no
impediment to the taking of her deposition in her own house. No effort was made toward
this end although her testimony was vital to the petitioner's cause. Jose dismisses such
testimony as merely "cumulative," but this Court does not agree. Having alleged that
Maria Jocson's marriage to Venancio Rivera was null and void, Jose had the burden of
proving that serious allegation.

We find from the evidence of record that the respondent court did not err in holding that
the Venancio Rivera who married Maria Jocson in 1942 was not the same person who
married Maria Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family
which had no relation whatsoever with the family of Venancio Rivera and Maria Vital.
This was more prosperous and prominent. Except for the curious identity of names of the
head of each, there is no evidence linking the two families or showing that the deceased
Venancio Rivera was the head of both.

Now for the holographic wills. The respondent court considered them valid because it
found them to have been written, dated and signed by the testator himself in accordance
with Article 810 of the Civil Code. It also held there was no necessity of presenting the
three witnesses required under Article 811 because the authenticity of the wills had not
been questioned.

The existence and therefore also the authenticity of the holographic wills were questioned
by Jose Rivera. In his own petition in SP No. 1076, he declared that Venancio Rivera
died intestate; and in SP No. 1091, he denied the existence of the holographic wills
presented by Adelaido Rivera for probate. In both proceedings, Jose Rivera opposed the
holographic wills submitted by Adelaido Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court should have applied Article 811 of
the Civil Code, providing as follows: 

In the probate of a holographic will, it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.

The flaw in this argument is that, as we have already determined, Jose Rivera is not the
son of the deceased Venancio Rivera whose estate is in question. Hence, being a mere
strange, he had no personality to contest the wills and his opposition thereto did not have
the legal effect of requiring the three witnesses. The testimony of Zenaida and Venacio
Rivera, Jr., who authenticated the wills as having been written and signed by their father,
was sufficient

WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED,

with costs against the petitioner.

SO ORDERED. 

[ G.R. No. L-14003, August 05, 1960 ]

FEDERICO AZAOLA, PETITIONER AND APPELLANT, VS. CESARIO
SINGSON, OPPOSITOR AND APPELLEE.

DECISION

REYES, J.B.L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves
the determination of the quantity of evidence required for the probate of a holographic
will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp.
22-24):

"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known
to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for
probate of the holographic will, submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against the nephew of the deceased
Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will
(Exh. C) one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the mortgage (Exh. E), the special
power of attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the
deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified
that the penmanship appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing therein are the signatures
of the testatrix; that said witness, in answer to a question of his counsel admitted that the
holographic will was handed to him by the testatrix, "apparently it must have been
written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by counsel if he was familiar with
the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered
positively in the affirmative and when he was asked again whether the penmanship
referred to in the previous answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that it was also established in
the proceedings that the assessed value of the property of the deceased in Luskot, Quezon
City, is in the amount of P7,000.00."

The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and
his wife, and (2) that the testatrix did not seriously intend the instrument to be her last
will, and that the same was actually written either on the 5th or 6th day of August 1957
and not on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the signature
are fn the writing of the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that the body of the will
was written in the handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be denied by the
adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

"Art. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a)"

We agree with the appellant that since the authenticity of the will was not contested, he
was not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the execution of a holographic will,
none being required by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any
three witnesses; they must be witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator". There may be no
available witness acquainted with the testator's hand; or even if so familiarized, the
witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That is evidently the
reason why the second paragraph of Article 811 prescribes that—

"in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to."

As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same, thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered
mandatory only in the case of ordinary testaments, precisely because the presence of at
least three witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10),
and the rule requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the
Court deem it necessary", which reveal that what the law deems essential is that the Court
should be convinced of the will's authenticity. Where the prescribed number of witnesses
is produced and the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the Court may still, and in
fact it should, resort to handwriting experts. The duty of the court, in fine, is to exhaust
all available lines of inquiry, for the state is as much interested as the proponent that the
true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889,
the noted Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely remarks:

"La manera como esta concebida la redaccion del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones
de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo, lo
hace necesario para mayor garantia de todos los intereses comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averiguar y declarar. Para eso se ha escrito la
frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya
habido o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.

El arbitrio judicial en este caso debe de formarse con independencia de los sucesos y die
su significacion, para responder debidamente de las resoluciones que haya de dictar."

And because the law leaves it to the trial court to decide if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert evidence, until
arid unless the court expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called
upon to construe the import of said article, the interest of justice would be better served,
in our opinion, by giving the parties ample opportunity to adduce additional evidence,
including expert witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with
this opinion. But evidence already on record shall not be retaken. No costs.

FIRST DIVISION
[ G.R. No. 123486, August 12, 1999 ]
EUGENIA RAMONAL CODOY, AND MANUEL RAMONAL,
PETITIONERS, VS. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO,
 AND EUFEMIA PATIGAS, RESPONDENTS.

DECISION

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of

Appeals[1] and its resolution denying reconsideration, ruling:
"Upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the authenticity of testators holographic will has been
established and the handwriting and signature therein (exhibit S) are hers, enough to
probate said will. Reversal of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that after plaintiff has completed
presentation of his evidence and the defendant files a motion for judgment on demurrer
to evidence on the ground that upon the facts and the law plaintiff has shown no right
to relief, if the motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered for appellant in the instant case.

"Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seño Vda. de Ramonal." [2]
The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees
and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal,
filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition [3] for probate
of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal,
was of sound and disposing mind when she executed the will on August 30, 1978, that
there was no fraud, undue influence, and duress employed in the person of the testator,
and the will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property
was about P400,000.00, at the time of her death.[4]

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition[5] to
the petition for probate, alleging that the holographic will was a forgery and that the
same is even illegible. This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic
will.

Petitioners argued that the repeated dates incorporated or appearing on the will after
every disposition is out of the ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature should appear at the bottom after
the dispositions, as regularly done and not after every disposition. And assuming that
the holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery.

Respondents presented six (6) witnesses and various documentary evidence. Petitioners
instead of presenting their evidence, filed a demurrer [6] to evidence, claiming that
respondents failed to establish sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seño Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
"WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence
having being well taken, same is granted, and the petition for probate of the document
(Exhibit "S") on the purported Holographic Will of the late Matilde Seño Vda. de
Ramonal, is denied for insufficiency of evidence and lack of merits."[7]
On December 12, 1990, respondents filed a notice of appeal, [8] and in support of
their appeal, the respondents once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay;
(4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account

of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was filed. He
produced and identified the. records of the case. The documents presented bear the
signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and
identify the voter's affidavit of the decedent. However, the voters' affidavit was not
produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal
was her aunt, and that after the death of Matilde's husband, the latter lived with her in
her parent's house for eleven (11) years, from 1958 to 1969. During those eleven (11)
years of close association with the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde Seño Vda. de
Ramonal) in collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried personal
letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda.
de Ramonal, she left a holographic will dated August 30, 1978, which was personally and
entirely written, dated and signed, by the deceased and that all the dispositions therein,
the dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de
Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by
the deceased in connection with the intestate proceedings of her late husband, as a
result of which he is familiar with the handwriting of the latter. He testified that the
signature appearing in the holographic will was similar to that of the deceased, Matilde
Seño Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department
of Environment and Natural Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar with the signature of
the deceased, since the deceased signed documents in her presence, when the latter
was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of
time she became familiar with the signature of the deceased. She testified that the
signature appearing in the holographic will is the true and genuine signature of Matilde
Seño Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:

"Instruction
"August 30, 1978

"1. My share at Cogon, Raminal Street, for Evangeline Calugay.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"3. My jewelry's shall be divided among:

"1. Eufemia Patigas

"2. Josefina Salcedo

"3. Evangeline Calugay

"(Sgd)Matilde Vda de Ramonal

"August 30, 1978

"4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"6. Bury me where my husband Justo is ever buried.

"(Sgd) Matilde Vda de Ramonal

"August 30,1978

"Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

"Mama

"Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision[9] ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil.
102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
"x x x even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present civil code can not be interpreted as to
require the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of the holographic will, none being required by law (art.
810, new civil code), it becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must be witnesses
"who know the handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not express) "that the will and the signature
are in the handwriting of the testator." There may be no available witness acquainted
with the testator's hand; or even if so familiarized, the witness may be unwilling to give
a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second paragraph of
article 811 prescribes that--

"in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to."

"As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

"It may be true that the rule of this article (requiring that three witnesses be presented
if the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need be
present (art.10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.

"Again, under Art.811, the resort to expert evidence is conditioned by the words "if the
court deem it necessary", which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is convincing, the court
may still, and in fact it should resort to handwriting experts. The duty of the court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.

"Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production of three
witnesses is merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available lines of
inquiry, for the state is as much interested in the proponent that the true intention of
the testator be carried into effect. And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.[10]
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay
and other witnesses definitely and in no uncertain terms testified that the handwriting
and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to
probate.

Hence, this petition.

The petitioners raise the following issues:

(1 Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon
) by the respondent Court of Appeals, was applicable to the case.
 
(2 Whether or not the Court of Appeals erred in holding that private respondents had
) been able to present credible evidence to prove that the date, text, and signature on the
holographic will were written entirely in the hand of the testatrix.
 
(3 Whether or not the Court of Appeals erred in not analyzing the signatures in the
) holographic will of Matilde Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three witnesses explicitly declare
that the signature in the will is the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in
a statute commonly denotes an imperative obligation and is inconsistent with the idea
of discretion and that the presumption is that the word "shall," when used in a statute is
mandatory."[11]

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that
aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine
the true intent of the deceased. An exhaustive and objective consideration of the
evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said court. He was not
presented to declare explicitly that the signature appearing in the holographic was that
of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to
identify the signature of the deceased in the voters' affidavit, which was not even
produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents
at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how
did Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
   
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets. [12]
   
xxx
   
Q. Who sometime accompany her?
A. I sometimes accompany her
   
Q. In collecting rentals does she issue receipts?
A. Yes, sir.[13]
   
xxx
   
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to
as one of the receipts which she issued to them?
A. Yes, sir.
   
 Q Now there is that signature of Matilde vda. De Ramonal, whose signature is that
. Mrs. Binanay?
A. Matilde vda. De Ramonal.
   
Q
Why do you say that that is a signature of Matilde vda. De Ramonal?
.
A. I am familiar with her signature.
   
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
kept records of the accounts of her tenants?
A. Yes, sir.
   
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De
Ramonal.
   
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.[14]
   
xxx
   
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of
sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda
De Ramonal?
A. Posting records.
   
Q. Aside from that?
A. Carrying letters.
   
Q. Letters of whom?
A. Matilde
   
Q. To whom?
A. To her creditors.[15]
   
xxx
   
Q. You testified that at the time of her death she left a will. I am showing to you a
document with its title "tugon" is this the document you are referring to?
A. Yes, sir.
   
Q Showing to you this exhibit "S", there is that handwritten "tugon", whose
. handwriting is this?
A. My aunt.
   
Q
Why do you say this is the handwriting of your aunt?
.
 A. Because I am familiar with her signature. [16]
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact that
the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde
. Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
   
Q
Who was in possession of that will?
.
A. I.
   
Q
Since when did you have the possession of the will?
.
A. It was in my mother's possession.
   
Q
So, it was not in your possession?
.
A. Sorry, yes.
   
Q And when did you come into possession since as you said this was originally in the
. possession of your mother?
A. 1985.[17]
   
xxx
   
Q Now, Mrs. Binanay was there any particular reason why your mother left that will to
. you and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
   
Q
After taking that document you kept it with you?
.
A. I presented it to the fiscal.
   
Q
For what purpose?
.
A. Just to seek advice.
   
Q
Advice of what?
.
A. About the will.[18]
 In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in issue
her motive of keeping the will a secret to petitioners and revealing it only after the
death of Matilde Seño Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that
. correct?
A. Yes, sir.
   
Q She was up and about and was still uprightly and she could walk agilely and she could
. go to her building to collect rentals, is that correct?
A. Yes, sir.[19]
   
xxx
   
Q Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
. retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
   
Q
And also in Matilde the letter L is continued to letter D?
.
A. Yes, sir.
   
Q Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
. continued towards letter D.
A. Yes, sir.
   
Q
And there is a retracing in the word Vda.?
.
A. Yes, sir.[20]
   
xxx
   
Q Now, that was 1979, remember one year after the alleged holographic will. Now, you
. identified a document marked as Exhibit R. This is dated January 8,1978 which is only about
eight months from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal
is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
   
Q You just say that she was very exhausted while that in 1978 she was healthy was not
. sickly and she was agile. Now, you said she was exhausted?
A. In writing.
   
Q How did you know that she was exhausted when you were not present and you just
. tried to explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic)
   
Q Now, you already observed this signature dated 1978, the same year as the alleged
. holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy
and the signature was written on a fluid movement. x x x And in fact , the name Eufemia R.
Patigas here refers to one of the petitioners?
A. Yes, sir.
   
Q You will also notice Mrs. Binanay that it is not only with the questioned signature
. appearing in the alleged holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.[21]
Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:
Q You testified that you stayed with the house of the spouses Matilde and Justo
. Ramonal for the period of 22 years. Could you tell the court the services if any which you
rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her
transactions.
   
Q
What else? What services that you rendered?
.
A. After my college days I assisted her in going to the bank, paying taxes and to her
lawyer.
   
Q
What was your purpose of going to her lawyer?
.
A. I used to be her personal driver.
   
Q In the course of your stay for 22 years did you acquire familiarity of the handwriting of
. Matilde Vda de Ramonal?
A. Yes, sir.
   
Q
How come that you acquired familiarity?
.
A. Because I lived with her since birth. [22]
   
xxx
   
Q Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978
. there is a signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
   
Q
Why do you say that is her signature?
.
 A. I am familiar with her signature.[23]
So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather.
Actually I am related to the husband by consanguinity.
   
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]
   
xxx
   
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
legitimate children?
A. As far as I know they have no legitimate children. [25]
   
xxx
   
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
   
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
   
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case
is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court
[26]
before.
   
xxx
   
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
   
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]
   
xxx
   
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were
the other assistance wherein you were rendering professional service to the deceased
 Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents
to show that I have assisted then I can recall. [28]
   
xxx
   
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
   
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.
   
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you
tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
   
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the
court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
   
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
   
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar. [29]
   
xxx
   
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
   
Q So you are not definite that this is the signature of Matilde vda de Ramonal. You are
. merely supposing that it seems to be her signature because it is similar to the signature of
the project of partition which you have made?
A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson, [31] ruling that the requirement
is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,[32] we said that "the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to
make a will."

However, we cannot eliminate the possibility of a false document being adjudged as the
will of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five
years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting
of the deceased with other documents signed and executed by her during her lifetime.
The only chance at comparison was during the cross-examination of Ms. Binanay when
the lawyer of petitioners asked Ms. Binanay to compare the documents which contained
the signature of the deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different
when compared with other documents written by the testator. The signature of the
testator in some of the disposition is not readable. There were uneven strokes, retracing
and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, [33] and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,[34] and a letter dated June 16, 1978,[35] the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain
that the holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seño Vda. de Ramonal.

No costs.

SO ORDERED.

[ G. R. No. L-12190, August 30, 1958 ]

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP DECEASED.
FAUSTO E. GAN, PETITIONER AND APPELLANT, VS. ILDEFONSO YAP,
OPPOSITOR AND APPELLEE.

DECISION

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City
of Manila.

On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:

"Nobyembre 5, 1951

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang

aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamaganakang sumusunod:

Vicente Esguerra,
....................................................................... 5 Bahagi
Sr
Pausto E. Gan ....................................................................... 2 Bahagi
Rosario E. Gan ....................................................................... 2 Bahagi
Filomena Alto ....................................................................... 1 Bahagi
Beatriz Alto ....................................................................... 1 Bahagi
'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking
ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa
ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupaa ang aking kagustuhan.'

(Lagda) Felicidad E. Alto-Yap"

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,[1] refused to probate the alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first
cousin, Vicente Esguerra, her desire to make a will. She confided however that it would
Jbe useless if her husband discovered or knew about it. Vicente consulted with Fausto E.
Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter
replied it could be done without any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic
will substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read
the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez,
a niece. To these she showed the will, again in the presence of Felina Esguerra, who read
it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra.
But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being
afraid of him by reason of his well-known violent temper, she delivered it to him.
Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it
the next day shortly before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the will for the last time [2]

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from
heart disease for several years before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband
and wife journeyed to the United States wherein for several weeks she was treated for the
disease; that thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she suffered
several attacks, the most serious of which happened in the early morning of the first
Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed,
even the teachers of the Harvardian Colleges occupying the lower floors and owned by
the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly "breathing, lying in bed, her head held high by
her husband. Injections and oxygen were administered. Following the doctor's advice the
patient stayed in bed, and did nothing the whole day, her husband and her personal
attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to
keep her will a secret, so that her husband would not know it, it is strange she executed it
in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary;
(b) in the absence of a showing that Felina was a confidant of the decedent it is hard to
believe that the latter would have allowed the former to see and read the will several
times; (c) it is improbable that the decedent would have permitted Primitivo Reyes,
Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its
contents to remain a secret during her lifetime; (d) it is also improbable that her purpose
being to conceal the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be opened by her husband;
(e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital
and that the will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed behind his
back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence
that Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the
oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the
same arguments, or most of them, were presented in the motion to reconsider; but they
failed to induce the court a quo to change its mind. The oppositor's brief, a on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters,
because in our opinion the case should be decided not on the weakness of the opposition
but on the strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permited the execution of holographic wills along with other
forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only
one form, thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1960 revived holographic wills in its arts. 810-814. "A
person may execute a holographic will which must be entirely written, dated, and sigrned
by the hand of the testator himself. It is subject to no other form and may be made in or
out of the Philippines, and need not be witnessed."

This is indeed a radical departure from the form and solemnities provided for wills under
Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the
testator and three credible witnesses in each and every page; such witnesses to attest to
the number of sheets used and to the fact that the testator signed in their presence and that
they signed in the presence of the testator and of each other.

The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authenticity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have no right to
succeed the testator would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855), However, formal imperfections may be
brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs. Yap, 40
Off. Gaz. Ist Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirement to be fulfilled when such
will is submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If
there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of
other additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances of its due execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and
as its own safeguard, since it could at any time, be demonstrated to be—or not to be—in
the hands of the testator himself. "In the probate of a holographic will" says the New
Civil Code, "it shall be necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such witnesses shall be
required. In the absence of any such witnesses, (familiar with decedent's handwriting) and
if the court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic
will. They may be mistaken in their opinion of the handwriting, or they may deliberately
lie in affirming it is in the testator's hand. However, the oppositor may present other
witnesses who also know the testator's handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will submitted to it has indeed
been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity[3]—
the testator's handwriting—has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in
the testator's handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge
of the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent's witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they
have not "been shown" a document which they believed was in the handwriting of the
deceased. Of course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document which he
believed was in the deceased's handwriting. And the court and the oppositor would
practically be at the mercy of such witness (or witnesses) not only as to the execution, but
also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or
destroyed will by secondary evidence—the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could
not then be validly made here. (See also Sec. 46, Rule 123; Art. 830—New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is
that it may be lost or stolen [4]—an implied admission that such loss or theft renders it
useless. "

This must be so, because the Civil Code requires it to be protocoled and presented to the
judge, (Art. 689) who shall subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable doubt that the will was written
by the testator (Art. 691). And if the judge considers that the identity of the will has been
proven he shall order that it be filed (Art. 693). All these, imply presentation of the will
itself. Art. 692 bears the same implication, to a greater degree. It requires that the
surviving spouse and the legitimate ascendants and descendants be summoned so that
they may make "any statement they may desire to submit with respect to the authenticity
of the will." As it is universally admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply permitting such relatives
to state whether they know of the will, but whether in the face of the document itself they
think the testator wrote it. Obviously, this they can't do unless the will itself is presented
to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it spurious.
[5]
 Such purpose is frustrated when the document is not presented for their examination. If
it be argued that such choice is not essential, because anyway the relatives may oppose,
the answer is that their opposition will be at a distinct disadvantage, and they have the
right and privilege to comply with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.

We find confirmation of these ideas—about exhibition of the document itself—in the

decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn from
it. Even in the face of allegations and testimonial evidence (which was controverted),
ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that,
in accordance with the provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.

"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del

articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eflcacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se llenaron todos esos
requisites, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el
verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas
condidones en el momento de ser presentado a la Autoridad competente, para su
adveraci6n y protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no estar firmado por el
testador, cualquiera que sea la causa de la falta, de firma, y sin perjuieio de las acetones
que puedan ejercitar los perjudicados, Men para pedir indemnizacion por el perjuicio a la
persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable * * *."

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the
basis of the Spanish Civil Code provisions on the matter.[6]

"PRECEDENTES LEGALES—Fuero Juzgo, libro segxmdo, titulo V, ley 15—E depues

que los herederos e sus fijos ovieren esta manda, fasta xxx annos muestrenla al obispo de
la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara
la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido,
el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda." (Art. 689, Scaevola—Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and
signature.[7]

Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the execution
and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.[8]

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails
the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses
are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were intimates or trusted
friends of the testator they are not likely to lend themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible[9] only one
man could engineer the whole fraud this way: after making a clever or passable imitation
of the handwriting and signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no interest, could easily
fall for it, and in court they would in all good faith affirm its genuineness and
authenticity. The will having been lost—the forger may have purposely destroyed it in an
"accident"—the oppositors have no way to expose the trick and the error, because the
document itself is not at hand. And considering that the holographic will may consist of
two or three pages, and only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature

—feasibility of forgery—would be added to the several objections to this kind of wills
listed by Castan, Sanchez Roman and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.[10]

One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost holographic will, the witnesses would
testify as to their opinion of the handwriting which they allegedly saw, an opinion which
can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the
trial judge's disbelief. In addition to the dubious circumstances described in the appealed
decision, we find it hard to believe that the deceased should show her will precisely to
relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These
could pester her into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another (point: if she wanted
so much to conceal the will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to
Davao, a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic
will, we think the evidence submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up to that "clear and distinct"
proof required by Rule 77, sec. 6.[11]

Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with
costs against petitioner.

FIRST DIVISION
[ G.R. No. L-58509, December 07, 1982 ]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA, DECEASED, MARCELA RODELAS, PETITIONER-
APPELLANT, VS. AMPARO ARANZA, ET. AL., OPPOSITORS-
APPELLEES, ATTY. LORENZO SUMULONG, INTERVENOR.

DECISION

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

"x x x On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No.
8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes,
Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:
"(1)  Appellant was estopped from claiming that the deceased left a will by failing
to produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;
 "(2)  The alleged copy of the alleged holographic will did not contain a disposition
of property after death and was not intended to take effect after death, and therefore it
was not a will;
"(3)  The alleged holographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509;
and
"(4)  The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
"The appellees likewise moved for the consolidation of the case with another
case (Sp. Proc. No. 8275). Their motion was granted by the court in an order dated April
4, 1977.
"On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
"(1)  The alleged holographic was not a last will but merely an instruction as to
the management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
"(2)  Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court
in its order of February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the
order was contrary to law and settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:

'. . . It is our considered opinion that once the original copy of the holographic will is lost,
a copy thereof cannot stand in lieu of the original.

'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter
of holographic wills the law, it is reasonable to suppose, regards the document itself as
the material proof of authenticity of said wills.'

'MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of
more than 14 years from the time of the execution of the will to the death of the decedent,
the fact that the original of the will could not be located shows to our mind that the
decedent had discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary to
law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the
following assigned errors:

"I.    THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL

MAY NOT BE PROVED BY A COPY THEREOF;
"II.   THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
"III.  THE LOWER COURT ERRED IN DISMISSING APPELLANT's WILL."

The only question here is whether a holographic will which was lost or cannot be found
can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at
least one identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available, the will can
not be probated because the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But a photostatic copy or xerox copy
of the holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court
ruled that "the execution and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in Footnote 8 of said decision, it
says that "Perhaps it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court." Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
 SO ORDERED.

SECOND DIVISION
[ G.R. No. 106720, September 15, 1994 ]
SPOUSES ROBERTO AND THELMA AJERO, PETITIONERS, VS. THE
COURT OF APPEALS AND CLEMENTE SAND, RESPONDENTS.

DECISION

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of Appeals  in CA-G.R.
[1]

CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:

“PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the

trial court is hereby REVERSED and SET ASIDE, and the petition for probate is
hereby DISMISSED. No costs."

The earlier Decision was rendered by the RTC of Quezon City, Branch 94,  in Sp. Proc.
[2]

No. Q-37171, and the instrument submitted for probate is the holographic will of the late
Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was in
every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body
nor the signature therein was in decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will
to probate. It found, inter alia:

"Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for the disallowance of the will for its
failure to comply with the formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is different
from the will actually executed by the testatrix. The only objections raised by the
oppositors xxx are that the will was not written in the handwriting of the testatrix which
properly refers to the question of its due execution, and not to the question of identity
of will. No other will was alleged to have been executed by the testatrix other than the
will herein presented. Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
"xxx                                                   xxx                                                       xxx
"While the fact that it was entirely written, dated and signed in the handwriting
of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in
Court that the holographic will in question was indeed written entirely, dated and signed
in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have been presented and have explicitly
and categorically identified the handwriting with which the holographic will in question
was written to be the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be entirely
written, dated and signed in the handwriting of the testatrix has been complied with.
"xxx                                                   xxx                                                       xxx
"As to the question of the testamentary capacity of the testatrix, (private
respondent) Clemente Sand himself has testified in Court that the testatrix was
completely in her sound mind when he visited her during her birthday celebration in
1981, at or around which time the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the
will, knew the value of the estate to be disposed of, the proper object of her bounty,
and the character of the testamentary act xxx. The will itself shows that the testatrix
even had detailed knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will. The objects of her
bounty were likewise identified explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence on will and succession, there is
more than sufficient showing that she knows the character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the allowance of
probate of the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said will was
procured by undue and improper pressure and influence on the part of the beneficiary
or of some other person, the evidence adduced have not shown any instance where
improper pressure or influence was exerted on the testatrix. (Private respondent)
Clemente Sand has testified that the testatrix was still alert at the time of the execution
of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was
also established that she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of superiority, which has been
testified to in Court, all show the unlikelihood of her being unduly influenced or
improperly pressured to make the aforesaid will. It must be noted that the undue
influence or improper pressure in question herein only refer to the making of a will and
not as to the specific testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
"Considering then that it is a well-established doctrine in the law on succession
that in case of doubt, testate succession should be preferred over intestate succession,
and the fact that no convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted
herein must be admitted to probate."  (Citations omitted.)
[3]

On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity."  It held that the decedent did not comply with Articles 813
[4]

and 814 of the New Civil Code, which read, as follows:

"Article 813: When a number of dispositions appearing in a holographic will are

signed without being dated, and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions."
"Article 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full signature."
It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of
the following cases:

"(a)    If not executed and attested as required by law;

(b)   If the testator was insane, or otherwise mentally incapable to make a will, at
the time of its execution;
(c)   If it was executed under duress, or the influence of fear, or threats;
(d)   If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;
(e)   If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature thereto."

In the same vein, Article 839 of the New Civil Code reads:

"Article 839: The will shall be disallowed in any of the following cases:

(1)  If the formalities required by law have not been complied with;
(2)  If the testator was insane, or otherwise mentally incapable of making a will,
at the time of its execution;
(3)  If it was executed through force or under duress, or the influence of fear, or
threats;
(4)  If it was procured by undue and improper pressure and influence, on the part
of the beneficiary or of some other person;
(5)  If the signature of the testator was procured by fraud;
(6)  If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto."

These lists are exclusive; no other grounds can serve to disallow a will.  Thus, in a
[5]

petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent.[6]
In the case at bench, respondent court held that the holographic will of Anne Sand was
not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed
the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

"The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's last will,
must be disregarded."

For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806
of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself,  as [7]

provided under Article 810 of the New Civil Code, thus:

"A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It  is subject to no other form, and may
be made in or out of the Philippines, and need not be witnessed." (Italics supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these dispositions
cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-

compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132
SCRA 237, 242 (1984), this Court held:
 "Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will have not been noted under his signature, xxx the Will
is not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an identical commentary when he said ‘la
omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895.’"  (Citations omitted.)
[8]

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the
date of the holographic will or on testator's signature,  their presence does not invalidate
[9]

the will itself.  The lack of authentication will only result in disallowance of such
[10]

changes.

It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They read
as follows:

"Article 678: A will is called holographic when the testator writes it himself in the
form and with the requisites required in Article 688."
"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper corresponding
to the year of its execution, written in its entirety by the testator and signed by him, and
must contain a statement of the year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must
identify them over his signature.
"Foreigners may execute holographic wills in their own language."

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code -- and not those found in Articles 813
and 814 of the same Code -- are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will.  In the case at bench, decedent herself indubitably stated in
[11]
her holographic will that the Cabadbaran property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in
its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the
whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

FIRST DIVISION
[ G.R. No. L-40207, September 28, 1984 ]
ROSA K. KALAW, PETITIONER, VS. HON. JUDGE BENJAMIN RELOVA,
PRESIDING JUDGE OF THE CFI OF BATANGAS, BRANCH VI, LIPA
CITY, AND GREGORIO K. KALAW, RESPONDENTS.

DECISION

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW,  claiming to be

the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court
of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will
executed on December 24, 1968.

The holographic Will reads in full as follows: 

My Last Will and Testament 

In the name of God, Amen. 

I, Natividad K. Kalaw, Filipino, 63 years of age, single, and a resident of Lipa City,
living of sound and disposing mind and memory, do hereby declare this to be my last will
and testament. 
1. It is my will that I be buried in the cemetery of the catholic church of Lipa City. In
accordance with the rites of said Church, and that my executrix hereinafter named
provide and erect at the expense of my state a suitable monument to perpetuate my
memory. 

2. I give, device and bequeath all my property real and personal to my beloved brother
Gregorio Kalaw, to have and to hold the same as his property absolutely and
unconditionally. 

3. I hereby appoint my said brother Gregorio Kalaw, as sole executrix of this my last will
and testament, and it is my will that said executrix be exempted from filing a bond. 

In witness where of I have hereunto set my hand this 24th day of Dec., 1968. 

Natividad K. Kalaw
  Testatrix        

 Witnesses:  

Lydia S. Pecio

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as
her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate
alleging, in substance, that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature of the testatrix as
required by Article 814 of the Civil Code reading: 

"Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic

will, the testator must authenticate the same by his full signature."

ROSA's position was that the holographic Will, as first written, should be given effect
and probated so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 1973,
reading in part: 

"The document Exhibit 'C' was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit
'C' was the handwriting of the decedent, Natividad K. Kalaw. The only question is
whether the will, Exhibit ‘C’, should be admitted to probate although the alterations
and/or insertions or additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art. 814 on the ground that they
themselves agreed thru their counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in estoppel. 

"The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit 'C'. Finding the insertions, alterations and/or additions in Exhibit 'C'
not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court
will deny the admission to probate of Exhibit 'C'. 

"WHEREFORE, the petition to probate Exhibit 'C' as the holographic will of Natividad
K. Kalaw is hereby denied." 

"SO ORDERED."

From that Order, GREGORIO moved for reconsideration arguing that since the

alterations and/or insertions were made by the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground that
"Article 814 of the Civil Code being clear and explicit, (it) requires no necessity for
interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
Certiorari on the sole legal question of whether or not the original unaltered text after
subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her as
sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will have not been noted under his signature, x x x the Will is
not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined.[1]  Manresa gave an identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895."[2] 

However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature.

The ruling in Velasco, supra, must be held confined to such insertions, cancellations,

erasures or alterations in a holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude. As Manresa had stated in his commentary on Article
688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived: 

"x x x No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones, no salvadas por el testador bajo su firma, segun previene
el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determina las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo contrario, se llegaria al absurdo
de que pequeñas enmiendas no salvadas, que en nada afectasen a la parte esencial y
respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley
del Notariado, que declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, pero
no el documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas o entrerrenglonadas no tengan importancia ni susciten duda
alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia
o de purez escrituraria, sin trascendencia alguna(l). 

"Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras
que no afecten, alteren ni varien de modo substancial la expresa voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916,
que declara nulo un testamento olografo por no estar salvada por el testador la enmienda
del guarismo ultimo del año en que fue extendido"[3]  (Italics ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge,
dated September 3, 1973, is hereby affirmed in toto. No costs.

SO ORDERED.

Plana, Gutierrez, Jr., and De La Fuente, JJ., concur.

SECOND DIVISION
 [ G.R. No. 169144, January 26, 2011 ]
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF
SPECIAL ADMINISTRATOR, MANUEL MIGUEL PALAGANAS AND
BENJAMIN GREGORIO PALAGANAS, PETITIONERS, VS. ERNESTO
PALAGANAS, RESPONDENT.

DECISION

ABAD, J.:

This case is about the probate before Philippine court of a will executed abroad
by a foreigner although it has not been probated in its place of execution.

The Facts and the Case

On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a

naturalized United States (U.S.) citizen, died single and childless.  In the last will and
testament she executed in California, she designated her brother, Sergio C. Palaganas
(Sergio), as the executor of her will for she had left properties in the Philippines and in
the U.S.

On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another  brother of

Ruperta, filed with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the
probate of Ruperta's will and for his appointment as special administrator of her estate.
[1]
  On October 15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel) and
Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the petition on
the ground that Ruperta's will should not be probated in the Philippines but in the U.S.
where she executed it.  Manuel and Benjamin added that, assuming Ruperta's will could
be probated in the Philippines, it is invalid nonetheless for having been executed under
duress and without the testator's full understanding of the consequences of such act. 
Ernesto, they claimed, is also not qualified to act as administrator of the estate.

Meantime, since Ruperta's foreign-based siblings, Gloria Villaluz and Sergio, were on
separate occasions in the Philippines for a short visit, respondent Ernesto filed a motion
with the RTC for leave to take their deposition, which it granted. On April, 13, 2004 the
RTC directed the parties to submit their memorandum on the issue of whether or not
Ruperta's U.S. will may be probated in and allowed by a court in the Philippines.

On June 17, 2004 the RTC issued an order:[2] (a) admitting to probate Ruperta's last will;
(b) appointing respondent Ernesto as special administrator at the request of Sergio, the
U.S.-based executor designated in the will; and (c) issuing the Letters of Special
Administration to Ernesto.

Aggrieved by the RTC's order, petitioner nephews Manuel and Benjamin appealed to the
Court of Appeals (CA),[3] arguing that an unprobated will executed by an American
citizen in the U.S. cannot be probated for the first time in the Philippines.

On July 29, 2005 the CA rendered a decision,[4] affirming the assailed order of the RTC,
[5]
 holding that the RTC properly allowed the probate of the will, subject to respondent
Ernesto's submission of the authenticated copies of the documents specified in the
order and his posting of required bond.  The CA pointed out that Section 2, Rule 76 of
the Rules of Court does not require prior probate and allowance of the will in the
country of its execution, before it can be probated in the Philippines.  The present case,
said the CA, is different from reprobate, which refers to a will already probated and
allowed abroad.  Reprobate is governed by different rules or procedures.  Unsatisfied
with the decision, Manuel and Benjamin came to this Court.

The Issue Presented

The key issue presented in this case is whether or not a will executed by a foreigner
abroad may be probated in the Philippines although it has not been previously probated
and allowed in the country where it was executed.

The Court's Ruling

Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad
must first be probated and allowed in the country of its execution before it can be
probated here.  This, they claim, ensures prior compliance with the legal formalities of
the country of its execution.  They insist that local courts can only allow probate of such
wills if the proponent proves that: (a) the testator has been admitted for probate in such
foreign country, (b) the will has been admitted to probate there under its laws, (c) the
probate court has jurisdiction over the proceedings, (d) the law on probate procedure in
that foreign country and proof of compliance with the same, and (e) the legal
requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners abroad
although the same have not as yet been probated and allowed in the countries of their
execution. A foreign will can be given legal effects in our jurisdiction.  Article 816 of the
Civil Code states that the will of an alien  who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by the law of the place
where he resides, or according to the formalities observed in his country. [6]

In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that
if the decedent is an inhabitant of a foreign country, the RTC of the province where he
has an estate may take cognizance of the settlement of such estate.  Sections 1 and 2 of
Rule 76 further state that the executor, devisee, or legatee named in the will, or any
other person interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.

Our rules require merely that the petition for the allowance of a will must show, so far
as known to the petitioner: (a)the jurisdictional facts; (b) the names, ages, and
residences of the heirs, legatees, and devisees of the testator or decedent; (c) the
probable value and character of the property of the estate; (d) the name of the person
for whom letters are prayed; and (e) if the will has not been delivered to the court, the
name of the person having custody of it.  Jurisdictional facts refer to the fact of death of
the decedent, his residence at the time of his death in the province where the probate
court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such
province.[7]  The rules do not require proof that the foreign will has already been allowed
and probated in the country of its execution.

In insisting that Ruperta's will should have been first probated and allowed by the court
of California, petitioners Manuel and Benjamin obviously have in mind the procedure
for the reprobate of will before admitting it here.  But, reprobate or re-authentication of
a will already probated and allowed in a foreign country is different from that probate
where the will is presented for the first time before a competent court.  Reprobate is
specifically governed by Rule 77 of the Rules of Court.  Contrary to petitioners' stance,
since this latter rule applies only to reprobate of a will, it cannot be made to apply to the
present case. In reprobate, the local court acknowledges as binding the findings of the
foreign probate court provided its jurisdiction over the matter can be established.
Besides, petitioners' stand is fraught with impractically.  If the instituted heirs do not
have the means to go abroad for the probate of the will, it is as good as depriving them
outright of their inheritance, since our law requires that no will shall pass either real or
personal property unless the will has been proved and allowed by the proper court. [8]

Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling
that the court can take cognizance of the petition for probate of Ruperta's will and that,
in the meantime, it was designating Ernesto as special administrator of the estate.  The
parties have yet to present evidence of the due execution of the will, i.e. the testator's
state of mind at the time of the execution and compliance with the formalities required
of wills by the laws of California. This explains the trial court's directive for Ernesto to
submit the duly authenticated copy of Ruperta's will and the certified copies of the Laws
of Succession and Probate of Will of California.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals decision

in CA-G.R. CV 83564 dated July 29, 2005.

SO ORDERED.

[ G.R. No. L-20234, December 23, 1964 ]

PAULA DE LA CERNA, ET AL., PETITIONERS, VS. MANUELA REBACA
POTOT, ET AL., AND THE HONORABLE COURT OF APPEALS,
RESPONDENTS.

DECISION

REYES, J. B. L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth
Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu
(Civ. Case No. R-3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of
Appeals (Petition, Annex A, pp. 2-4):

"It appear that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that 'our
two parcels of land acquired during our marriage together with all improvements thereon
shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot', and that 'while each of the testator is yet living, he or she will continue to
enjoy the fruits of the two lands aforementioned', the said two parcels of land being'
covered by Tax No. 4676 and Tax No. 6677, bold situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939,
and the aforesaid will was submitted to probate by said Gervasia and Manuela before the
Court of First Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939, in Special
Proceedings No. 499, 'declara legalizado el documento Exhibito A corao cl tcstamento y
ultima voluntad del finado Bernabe de la Cerna con derecho por parte de su viuda
superstite Gervasia Rebaca y otra testadora al proprio tiempo segun el Exhibito A de
gozar de los frutos de los terrenos degeritos en dicho documento; y habido consideracion
de la cuantia de dichos bienes, se derecta la distribution sumaria de los mismos en favor
de la legataria universal Manuela Rebaca de Potot previa prestacion por parte do la
misma de una fianza en la suma de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del finado Bernabe de la Cerna dentro
de los años desde esta fecha.' (Act. Esp. 499, Testamentaria Finado Bernabe de la Cerna).
Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate
of the same will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but
for failure of the petitioner, Manuela R. Potot, and her attorney, Manuel Potot to appear,
for the hearing of said petition, the case was dismissed on March 30, 1954 (Spec. Proc.
No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca)."

The Court of First Instance ordered the petition heard and declared the testament null and
void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art.
669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by
the testamentary heir, the Court of Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due
execution of the testament. Further, the Court of Appeals declared that:

"x x x. It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for
the benefit of a third person. However, this form of will has long been sanctioned by use,
and the same has continued to be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by final order of a Court of
competent jurisdiction, there, seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case of Macrohon vs.
Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the
joint will therein mentioned, saying 'assuming that the joint will in question is valid'."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by
the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has
conclusive effect as to his last will and testament, despite the fact that even then the Civil
Code already decreed the invalidity of joint wills, whether in favor of the joint testators,
reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus
committed by the probate court was an error of law, that should have been collected by
appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on a petition
for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil.
938; In re Estate of Johnson, 39 Phil. 156); and public policy and sound practice demand
that at the risk of occasional errors, judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis sit litium (Dy Cay us. Crossfield,
38 Phil. 521, and other cases cited in 2 Moran, Comments on the Rules of Court 1963
Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the
1939 decree admitting his will to probate. The contention that being void the will cannot
be validated, overlooks that the ultimate decision on whether an act is valid or void rests
with the courts, and here they have spoken with finality when the will was probated in
1939. On this count, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1939 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the share
of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered that prior to the Civil Code, a will
could not bo probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will
is considered a separate will of each testator. Thus regarded, the holding of the Court of
First Instance of Cebu that the joint will is one prohibited by law was correct as to the
participation of the deceased Gervasia Rebaca in the properties in question, for the
reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil., 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her
heirs intestate, and not exclusively to the testamentary heir, unless some other valid will
in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage
could not make them valid when our Civil Codes consistently invalidated them, because
laws are only repealed by other subsequent laws, and no usage to the contrary may
prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).

With the foregoing modification, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No costs.