Testate Estate of Cagro vs. Cagro

G.R. L-5826

Facts: 

The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which admitted to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949. The appellants insisted that the will is defective because the attestation was not signed by the witnesses at the bottom although the page containing the same was signed by the witnesses on the left hand margin. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform substantially to law and may be deemed as their signatures to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the execution of the will. It is 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 negatives their participation.

Moreover, the signatures affixed on the let hand margin is not substantial conformance to the law. The said signatures were merely in conformance with the requirement that the will must be signed on the left-hand margin of all its pages. If the attestation clause is unsigned by the 3 witnesses at the bottom, it would be easier to add clauses to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

The probate of the will is denied.

Cruz v. Villasor 

G.R. L-32213 November 26, 1973

Ponente: Esguerra, J.:

Facts:

The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law. . One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them.

Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

HELD: NO.

The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and 'before' means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Gabucan vs. Manta

FACTS:

This case is about the dismissal of a petition for the probate of the notarial will of the late Rogaciano Gabucan on the ground that it does not bear a thirty-centavo documentary stamp. The probate court refused to reconsider the dismissal in spite of petitioner’s manifestation that he had already attached the documentary stamp to the original of the will.

ISSUE:

W/N the probate correct was correct in dismissing the petition on the ground of failure to affix the documentary stamp to the will

HELD:

The Court held that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was “no will and testament to probate” and, consequently, the alleged “action must of necessity be dismissed.”

What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document. The documentary stamp may be affixed at the time the taxable document is presented in evidence.

Javellana vs. Ledesma

G.R. No. L-7179

Facts:

The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the sister and nearest surviving relative of the deceased.  She appealed from this decision alleging that the will were not executed in accordance with law. . The testament was executed at the house of the testatrix. One the other hand, the codicil was executed after the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary public. Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the codicil was signed and attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on the same occasion. Gimotea, however, said that he did not do so, and that the act of signing and sealing was done afterwards. One of the allegations was that the certificate of acknowledgement to the codicil was signed somewhere else or in the office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the notary only when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects the validity of the will

Held: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and the notary be accomplished in one single act. All that is required is that every will must be acknowledged before a notary public by the testator and witnesses. The subsequent signing and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate execution out of the presence of the testator and the witnesses cannot be a violation of the rule that testaments should be completed without interruption.

Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS

Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The will consisted of two pages, the first page containing all the testamentary dispositions of the testator and was signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three instrumental witnesses. The second page consisted of the attestation clause and the acknowledgment was signed at the end of the attestation clause by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed the will for want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix, while the three witnesses only signed at the left hand margin of the page. The judge opined that compliance with the formalities of the law required that the witnesses also sign at the end of the will because the witnesses attest not only the will itself but the signature of the testatrix. Hence, this petition.

ISSUE Was the object of attestation and subscription fully when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions?

HELD

On certiorari, the Supreme Court held a) that the objects of attestation and 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 a subscribing witness to be the same will executed by the testatrix; and b) that the failure of the attestation clause to state the number of pages used in writing the will would have been a fatal defect were it not for the fact that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.

G.R. No. L-58509 December 7, 1982IN 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.

FACTS:

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 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 hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam 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. 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 February23,1979.

The appellees then filed a motion for reconsideration. 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. 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 Gam 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.

Issue: whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.

Held:

Yes. 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 Gam 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.

Garcia v. Vasquez 

G.R. No. L-26808 March 28, 1969

Fernando, J (Ponente)

Facts:

Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she knew an spoke. The other will was executed in December 1960 consisting of only one page, and written in Tagalog. The witnesses to the 1960 will declared that the will was first read 'silently' by the testatrix before signing it. The probate court admitted the will. The oppositors alleged that the as of December 1960, the eyesight of the deceased was so poor and defective that she could not have read the provisions contrary to the testimony of the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC) should apply.If the testator is blind or incapable of reading, he must be apprised of the contents of the will for him to be able to have the opportunityto object if the provisions therein are not in accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation to remove her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained mainly for viewing distant objects and not for reading. There was no evidence that her vision improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her own will. The admission of the will to probate is therefor erroneous.

ALVARADO vs. GAVIOLA

September 14, 1993

FACTS: 

The testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the 8-paged document, read the same aloud in the presence of the testator, the 3 instrumental witnesses and the notary public. The latter 4 followed the reading with their own respective copies previously furnished them.

            Said will was admitted to probate.  Later on, a codicil was executed, and by that time, the testator was already 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.

ISSUE:       Was there substantial compliance to the reading of the will?

HELD: 

Yes

Article 808 not only applies to blind testators, but also to those who, for one reason or another, are incapable of reading their wills.  Hence, the will should have been read by the notary public and an instrumental witness.  However, the spirit behind the law was served though the letter was not.  In this case, there was substantial compliance. 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.

            In this case, 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.

CUEVAS VS ACHACOSO 88 PHIL 730

Facts:

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. Insaid will the deceased instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He named therein his widow as executrix of the will. On February 1, 1946, Valentina Cuevas filed a petition for the probate of said will. On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous will executed by the deceased praying therein that, if the will submitted by the widow be rejected, the other will be admitted to probate in lieu thereof. In the previous will there are other heirs instituted, among them petitioner Pilar Achacoso. Pilar Achacoso objected to the probate of the second will executed by the deceased on October 10, 1945.After due hearing, the court found that the latter will was executed in accordance with law and ordered that it be admitted to probate. Pilar Achacoso took the case to the Court of Appeals, but the latter certified it to this Court on the ground that it involves purely questions of law.

 The will in question, after reciting in separate paragraphs, and under correlative numbers, the provisions of the will, winds up with the following clause:

“IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba, Zambales, Philippines, this 10th day of October, 1945, in the presence of the three witnesses, namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses tomy signing; this testament is written in three (3) sheets marked by letter "A", "B" and "C" consecutively on top of each sheet and upon my request and in my presence and also in the presence of each of the aforesaid instrumental witnesses, they also signed this testament already reffered to.I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well as the testament itself have been signed by me as also each of the witnesses has also signed in my presence and in the presence of each other.(Sgd.) JOSE VENZON Witnesses:(Sgd.) NESTORIO TRINIDAD(Sgd.) BALDOMERO L. ACHACOSO(Sgd.) PROCESO CABAL.”

Issue: whether the alleged lack of attestation clause in the will under consideration, or to the fact that, if there is such attestation clause, the same has not been signed by the instrumental witnesses, but by the testator himself, and it is claimed that this defect has the effect of invalidating the will.

Held: Yes

The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantially complies with its requirements.

The only apparent anomaly we find is that it appears to bean attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses."Instrumental witness, as define by Escriche in his

Diccionario Razonado deLegislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807,809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will.

The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause. As was said in one case, "the object of the solemnities surrounding the execution of the 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 this 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.

Dichoso v Marcos Digest

G.R. No. 180282, April 11, 2011

Nachura, J.:

Facts:

 This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the CA decision and resolution which reversed and set aside the RTC decision on the civil case. The resolution denied the MR filed by the petitioners .    In 2002, petitioners filed a Complaint for Easement of Right of Way against the respondent Patrocinio L. Marcos and alleged therein that they are the owners of Lot No. 21553; while respondent is the owner another lot.  Since the petitioners had no access to a public road to and from their property, they claimed to have used a portion of Lot No. 1 in accessing the road since 1970. Respondent, however, blocked the passageway with piles of sand. Though petitioners have been granted another passageway by Spouses Arce, the owners of another adjacent lot.  Hence the complaint before the RTC. Instead of filing an Answer, respondent filed a motion to dismiss on the ground of lack of cause of action and noncompliance with the requisite certificate of non-forum shopping. The RTC denied respondent’s motion to dismiss.  Respondent denied that he allowed anybody to use Lot No. 1 as passageway and that petitioners’ claim of right of way is only due to expediency and not necessity. He also maintained that there is an existing easement of right of way available to petitioners granted by the Spouses Arce. The RTC declared that respondent’s answer failed to tender an issue, and opted to render judgment on the pleadings and thus deemed the case submitted for decision.   RTC rendered a decision in favor of the petitioners, granting a right of way over Lot 01 after finding that petitioners adequately established the requisites to justify an easement of right of way in accordance with Articles 649 and 650 of the Civil Code.   On appeal, the CA reversed and set aside the RTC decision and dismissed petitioners’ complaint. It concluded that there is no need to establish an easement over respondent’s property since the Arce spouses had already provided an access road which is adequate. It emphasized that the convenience of the dominant estate is never the gauge for the grant of compulsory right of way. Hence, this petition. Petitioners contend that respondent's lot is the shortest route in going to and fro their property to a public street and where they used to pass.

ISSUE: Whether petitioners are entitled to a legal easement

Held

NO. The petition is without merit. Petitioners failed to show sufficient factual evidence to satisfy the enumerated requirements under Art. 650 (NCC). 

   By its very nature, an easement involves an abnormal restriction on the property rights of the servient owner and is regarded as a charge or encumbrance on the servient estate. It is incumbent upon the owner of the dominant estate to establish by clear and convincing evidence the presence of all the preconditions before his claim for easement of right of way may be granted.    Mere convenience for the dominant estate is not what is required by law as the basis of setting up a compulsory easement.  The convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. The true standard for the grant of the legal right is "adequacy." In order to justify the imposition of an easement of right of way, there must be real, not fictitious or artificial, necessity for it. As such, when there is already an existing adequate outlet from the dominant estate to a public highway, as in this case, even when the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. Petitioners had already been granted a right of way through the other adjacent lot. There is an existing outlet to and from the public road. Other lot owners use the said outlet in going to and coming from the public highway.