G.R. No. L-15153 August 31, 1960In the Matter of the summary settlement of the Estate of the deceasedANACLETA ABELLANA. LUCIO BALONAN,petitioner-appellee,vs.EUSEBIA ABELLANA, et al.,oppositors-appellants.T. de los Santos for appellee.Climaco and Climaco for appellants.LABARADOR,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 three (3) instrumental witnesses Blas 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 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. (Emphasis 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 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 besubscribedat the end thereof by the testator himself orby 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 witness in the presence of the testator and of one another. (Emphasis 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. . . . (Emphasis 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., 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 could have signed if he knew how or was able to do so, 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 Doe; or in this form: "By the testator, John Doe, Richard Doe." 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 forms given above. He did not do so, however, and this is 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 ofCuison vs. Concepcion, 5 Phil., 552. In the case ofBarut 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 areas follows: (Ex ParteJuan Ondevilla, 13 Phil., 479, Caluyavs.Domingo, 27 Phil., 330; Garciavs.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.Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon, JJ.,concur.FIRST DIVISIONG.R. No. L-36033 November 5, 1982IN 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 Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent.Erasmo M. Diola counsel for petition.Hon. Avelino S. Rosal in his own behalf.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 partepraying 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 filedex 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 signat the endof 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 lacier witnesses 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 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 an the three subscribing witnesses must also sign at the same place orat 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 wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an 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 termsattestedandsubscribedAttestation 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 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 wig 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".InSingson v. Florentino, et al.(92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coquevs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarriavs. Sarmiento, 66 Phil. 611). Theratio decidendiof 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.Icasiano v. Icasiano(11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:... 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 fun 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 tile 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 wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs.SO ORDERED.THIRD DIVISIONG.R. No. 122880 April 12, 2006FELIX AZUELA,Petitioner,vs.COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO,Respondents.D E C I S I O NTINGA,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 merejurat, 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. IGSOLOSA 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 pasubalit 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 SAKSIAng 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 bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.EUGENIA E. IGSOLOaddress: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.QUIRINO AGRAVAaddress: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981LAMBERTO C. LEAOaddress: Avenue 2, Blcok 7,Lot 61, San Gabriel, G.MA., Cavite Res.Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981JUANITO ESTRERAaddress: City Court Compound,City of Manila Res. Cert. No. A574829Issued at Manila on March 2, 1981.Nilagdaan ko at ninotario ko ngayong10ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.(Sgd.)PETRONIO Y. BAUTISTADoc. No.1232; NOTARIO PUBLIKOPage No.86; Until Dec. 31, 1981Book No.43; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81The 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.2Geralda 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 petitioners right to occupy the properties of the decedent.3It 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 1965,4and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedents 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 1992.6The 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;"7and from this perspective, rebutted oppositors 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 bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat 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 oppositors 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 oppositors 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 oppositors 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.8The 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.9The 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.10Hence, 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."11The 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.12There 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 processUy Coque v. Navas L. Sioca13andIn re: Will of Andrada.14InUy 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.15In 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."16The case ofIn re Will of Andradaconcerned 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."17It 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."18Against these cited cases, petitioner citesSingson v. Florentino19andTaboada v. Hon. Rosal,20wherein 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 xThe 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). Theratio decidendiof 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 evidencealiunde, 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 xWe 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.21BothUy CoqueandAndradawere 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 Section618 of the Code of Civil Procedure.22Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23However, 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."24However, 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."25Caneda v. Court of Appeals26features 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.27Uy CoqueandAndradaare cited therein, along with several other cases, as examples of the application of the rule of strict construction.28However, 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. InCanedaitself, 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,30the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.Canedasuggested: "[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 evidencealiundewould result in the invalidation of the attestation clause and ultimately, of the will itself."31Thus, 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 anothers presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32The 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.33The 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. FollowingCaneda, 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 inSingsonandTaboada. 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.34Compliance 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 propertypost mortemin the manner established in the will.35The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testators 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. Cagro36is 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."37While three (3) Justices38considered 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.39The Court today reiterates the continued efficacy ofCagro. 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 ngayong10ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40By 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.41It 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 ajurat, even though it does not hew to the usual language thereof. Ajuratis that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42Ordinarily, the language of thejuratshould 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 ajurat, 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.43The 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 thedisposition 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"44of 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.45Taken 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.G.R. No. 42258 September 5, 1936In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD,petitioner-appellant,vs.AQUILINA TOLENTINO,oppositor-appellant.Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.Leodegario Azarraga for oppositor-appellant.DIAZ,J.:There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935, praying for the reconsideration of the decision of the court and that of the same date, praying for a new trial.The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:1. That the testatrix did not personally place her thumbmark on her alleged will;2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will where she should place her thumbmarks;3. That the will in question was not signed by the testatrix on the date indicated therein;4. That the testatrix never made the will in question; and5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition to make it.We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in her brief have not been duly considered, whether some fact or detail which might have led us to another conclusion has been overlooked, or whether the conclusions arrived at in our decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She had a slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her still suffering from said illness but there was no indication that she had but a few days to live. She ate comparatively well and conserved her mind and memory at least long after noon of September 7, 1933. She took her last nourishment of milk in the morning of the following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to make a will and bequeath her property to the petitioner Victorio Payad in compensation according to her, for his diligent and faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who had been in her home from childhood. The will was written by Attorney Almario in his own handwriting, and was written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all the contents of the document and requested Attorney Almario to write her name where she had to sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary strength to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney Almario proceeded to write the name of the testatrix on the three pages composing the will and the testatrix placed her thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in order to place the mark between her name and surname, after she herself had moistened the tip of her thumb with which she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later signed the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances above stated.In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that she never made said will because she was no longer physically or mentally in a condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of September 7, 1933, in the house of the deceased where they were then living, and that the first time that they saw him there was at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by woman named Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was situated at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen which was situated under the house. Under such circumstances it is not strange that the two did not see the testatrix when, according to the evidence for the petitioner, she made her will and signed it by means of her thumbmark. In order to be able to see her and also Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room where the will was prepared by Attorney Almario, but they did not do so.Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she could not move and that she could hardly be understood because she could no longer enunciate, making it understood thereby, that in such condition it was absolutely impossible for her to make any will. The attorney for the oppositor insists likewise and more so because, according to him and his witness Paz de Leon, two days before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make herself understood.The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate them, we have of record the testimony of the physician of the deceased and the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome of these proceedings does not affect them in the least. The two testified that two, three or four days before the death of the testatrix, they visited her in her home, the former professionally, and the latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a conversation. They stated that she spoke to them intelligently; that she answered all the questions which they had put to her, and that she could still move in spite of her weakness.In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration is unfounded.The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions not to open it until after her death; (2) that there are witnesses competent to testify on the letter in question, in addition to other evidence discovered later, which could not be presented at the trial; (3) that in the letter left by the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the property in question should become Yangco's. From this alleged fact, the oppositor infers that the deceased never had and could not have had the intention to make the will in question, and (4) that said oppositor knew of the existence of said letter only after her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named Jose Cortes.Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the will of the deceased but he did not do so because after seeing her he had been convinced that she could not make a will because she had lost her speech and her eyes were already closed.The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by the oppositor, are attached to both motions for a new trial.The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor the fact that the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment was rendered only on January 15, 1936, or eight months later.The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch as the judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed from the decision of the lower court and it was her duty, under the circumstances, to inform this court of the discovery of said allegedly newly discovered evidence and to take advantage of the effects thereof because, by so doing, she could better support her claim that the testatrix made no will, much less the will in question. Said evidence, is not new and is not of the nature of that which gives rise to a new trial because, under the law, in order that evidence may be considered newly discovered evidence and may serve as a ground for a new trial, it is necessary (a) that it could not have been discovered in time, even by the exercise of due diligence; (b) that it be material, and (c) that it also be of such a character as probably to change the result if admitted (section 497, Act No. 190; Banalvs.Safont, 8 Phil., 276).The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It is simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered important or material evidence but this court has not the letter in question before it, and no attempt was ever made to present a copy thereof.The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more competent than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the deceased was almost unconscious, was unintelligible and could not speak, it does not necessarily mean that on the day she made her will, September 7, 1933, she had not recovered consciousness and all her mental faculties to capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not and can not be newly discovered evidence of the character provided for by law, not only because it does not exclude the possibility that testatrix had somewhat improved in health, which possibility became a reality at the time she made her will because she was then in the full enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court of First Instance, Attorney Viola was present, and the oppositor then could have very well called him to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150 of the transcript:Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the last witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the will of the deceased in his favor on September 5, 1933.COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? Mr. PANIS: No, Your Honor.COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness stand? Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.COURT: And when can he come? Mr. PANIS. I am now going to find out, Your Honor. If the other party, Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney Fernando Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am going waive the presentation of the witness Mr. Fernando Viola.Mr. ALMARIO (attorney for the petitioner): We cannot admit that.COURT: The court had already assumed beforehand that the other party would not admit that proposition.Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice to the other party's calling the witness it may wish to call.COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have been because she considered his testimony unimportant and unnecessary, and at the present stage of the proceedings, it is already too late to claim that what said attorney may now testify is a newly discovered evidence.For the foregoing considerations, those stated by this court in the original decision, and the additional reason that, as held in the case ofChung Kiat vs. Lim Kio(8 Phil., 297), the right to a new trial on the ground of newly discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for reconsideration and a new trial filed by the oppositor are hereby denied, ordering that the record be remanded immediately to the lower court. So ordered.EN BANCG.R. No. L-10907 June 29, 1957AUREA MATIAS,petitioner,vs.HON. PRIMITIVO L. GONZALEZ, ETC., ET AL.,respondents.J. Gonzales Orense for petitioner.Venancio H. Aquino for respondents.CONCEPCION,J.:Petitioner Aurea Matias seeks a writ ofcertiorarito annul certain orders of Hon. Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased Gabina Raquel."On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire estate of the deceased except the properties bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after appropriate proceedings, the court, presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the petition for probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now pending decision.Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on which date the court postponed the hearing to February 27, 1956. Although notified of this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion praying for additional time within which to answer the charges preferred against him by Basilia Salud and for another postponement of said hearing. This motion was not granted, and Basilia Salud introduced evidence in support of said charges, whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and, accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator."On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office, and that said movant is the universal heiress of the deceased and the person appointed by the latter as executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained "the appointment of the three above named persons" Basilia Salud, Ramon Plata and Victorina Salud "for the management of the estate of the late Gabina Raquel pending final decision on the probate of the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as special administratrix by reason of physical disability, due to old age, and recommended the appointment, in her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias she (Victorina Salud) having been the principal and most interested witness for the opposition to the probate of the alleged will of the deceased and proposed that the administration of her estate be entrusted to the Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said estate. This motion for reconsideration was denied on March 26, 1956.Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to collect the rents due, or which may be due, to the estate of the deceased and to collect all the produce of her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for permission to sell the palay of the deceased then deposited in different rice mills in the province of Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the ground that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.In support of this pretense, it is argued that petitioner should have preference in the choice of special administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and, the executrix appointed in the alleged will of the deceased, that until its final disallowance which has not, as yet, taken place she has a special interest in said estate, which must be protected by giving representation thereto in the management of said estate; that, apart from denying her any such representation, the management was given to persons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness for said office, she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules of Court do not permit the appointment of more than one special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and without any abuse of discretion; that petitioner can not validly claim any special interest in the estate of the deceased, because the probate of the alleged will and testament of the latter upon which petitioner relies has been denied; that Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina Salud and Ramon Plata have not done anything that would warrant their removal.Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the following reasons:1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956, the record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that set for the hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956, postponing said hearing to February 27, 1956, was not served on petitioner herein.2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the appointment ofRamon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that her main opponent,Basilia Salud, and the latter's principal witness,Victorina Salud, would be considered for the management of said. As a consequence, said petitioner had no opportunity to object to the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order of February 27, 1956, to this effect, denied due process to said petitioner.3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent Judge would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the latter "shallalwaysact as aide, interpreter and adviser of Basilia Salud."4. Thus, respondent Judge, in effect, appointed three (3) special administrators Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "theappointmentof the three (3) above-named persons for the management of the estate of the late Gabina Raquel."5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased. The former proposed Horacio Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an order dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the estate, amounted to a reversal of the aforementioned order of Judge Bernabe of August 11, 1952.6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the order to this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The probate of said alleged will being still within realm of legal possibility, Aurea Matias has as the universal heir and executrix designated in said instrument a special interest to protect during the pendency of said appeal. Thus, in the case ofRoxas vs. Pecson*(46 Off. Gaz., 2058), this Court held that a widow, designated as executrix in the alleged will and testament of her deceased husband, the probate of which had denied in an order pending appeal, "has . . .the same beneficial interestafter the decision of the court disapproving the will, which is now pending appeal,because the decision is not yet final and may be reversed by the appellate court."7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one, represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to appoint more than one special administrator, justice and equity demands that both factions be represented in the management of the estate of the deceased.The rule, laid down inRoxas vs. Pecson(supra), to the effect that "only one special administrator may be appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case. The lower court appointed therein one special administrator for some properties forming part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2) separate and independent special administrators. In the case at bar there is onlyone(1) specialadministration, the powers of which shall be exercised jointly by two specialco-administrators. In short, the Roxas case is not squarely in point. Moreover, there are authorities in support of the power of courts to appoint several special co-administrators (Lewisvs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties concerned, for action in conformity with the views expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It is so ordered.EN BANCG.R. No. L-4067 November 29, 1951In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA,petitioner,vs.JULIANA LACUESTA, ET AL.,respondents.Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.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, by these presents to 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 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 statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.(Sgd.) NUMERIANO EVANGELISTA(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the 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 a 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 thereon 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 that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Galavs.Gonzales and Ona, 53 Phil., 104; Dolarvs.Diancin, 55 Phil., 479; Payadvs.Tolentino, 62 Phil., 848; Neyravs.Neyra, 76 Phil., 296 and Lopezvs.Liboro, 81 Phil., 429.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 the 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 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 against the petitioner. So ordered.