W&S Assigned Cases 1.0

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Wills and Succession

1

G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIAMARLENA 2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

This is a petition for review of the decision of the Court of Appeals, 3 datedDecember 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered thedefendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla,to reconvey title over Lot No. 1392, together with its fruits and interests, to theestate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr.Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S.Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, whichwas duly probated and admitted in Special Proceedings No. 4046 before the thenCourt of First Instance of Negros Occidental, contained the following provisions:

FIRST

I give, leave and bequeath the following property owned by me to Dr. JorgeRabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to therecords of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned propertyand the rights which I shall set forth hereinbelow, shall be inherited andacknowledged by the children and spouse of Jorge Rabadilla.

FOURTH

(a) It is also my command, in this my addition (Codicil), that should I die andJorge Rabadilla shall have already received the ownership of the said Lot No.1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of thesaid lot shall expire, Jorge Rabadilla shall have the obligation until he dies,every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic)piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until thesaid Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10492), shall have the obligation to still give yearly, the sugar as specified inthe Fourth paragraph of his testament, to Maria Marlina Coscolluela y Bellezaon the month of December of each year.

SIXTHI command, in this my addition (Codicil) that the Lot No. 1392, in the event thatthe one to whom I have left and bequeathed, and his heir shall later sell, lease,mortgage this said Lot, the buyer, lessee, mortgagee, shall have also theobligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar toMaria Marlina Coscolluela y Belleza, on each month of December, SEVENTYFIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, untilMaria Marlina shall die, lastly should the buyer, lessee or the mortgagee of thislot, not have respected my command in this my addition (Codicil), MariaMarlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 frommy heir and the latter's heirs, and shall turn it over to my near desendants;(sic) and the latter shall then have the obligation to give the ONE HUNDRED(100) piculs of sugar until Maria Marlina shall die. I further command in this myaddition (Codicil) that my heir and his heirs of this Lot No. 1392, that they willobey and follow that should they decide to sell, lease, mortgage, they cannotnegotiate with others than my near descendants and my sister. 4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr.Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in hisname.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and childrenJohnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought acomplaint, docketed as Civil Case No. 5588, before Branch 52 of the RegionalTrial Court in Bacolod City, against the above-mentioned heirs of Dr. JorgeRabadilla, to enforce the provisions of subject Codicil. The Complaint alleged thatthe defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and theRepublic Planters Bank in disregard of the testatrix's specific instruction to

sell, lease, or mortgage only to the near descendants and sister of thetestatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred(100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) toplaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up tothe filing of the complaint as mandated by the Codicil, despite repeateddemands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil whichprovided that in case of the sale, lease, or mortgage of the property, the buyer,lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs toreconvey/return Lot No. 1392 to the surviving heirs of the late Aleja Belleza, thecancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla,and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but an March28, 1990 the Order of Default was lifted, with respect to defendant Johnny S.Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain AlanAzurin, son-in-law of the herein petitioner who was lessee of the property andacting as attorney-in-fact of defendant-heirs, arrived at an amicable settlementand entered into a Memorandum of Agreement on the obligation to deliver onehundred piculs of sugar, to the following effect:

That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCTNo. 44489 will be delivered not later than January of 1989, more specifically, towit:

75 piculs of "A" sugar, and 25 piculs of "B" sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is consideredcompliance of the annuity as mentioned, and in the same manner willcompliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, willbe complied in cash equivalent of the number of piculs as mentioned thereinand which is as herein agreed upon, taking into consideration the compositeprice of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggeredcash installment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)Pesos, payable on or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)Pesos, payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)Pesos, payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)Pesos, payable on or before December of crop year 1991-92. 5

However, there was no compliance with the aforesaid Memorandum of Agreementexcept for a partial delivery of 50.80 piculs of sugar corresponding to sugar cropyear 1988-1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissingthe complaint and disposing as follows:

WHEREFORE, in the light of the aforegoing findings, the Court finds that theaction is prematurely filed as no cause of action against the defendants has asyet arose in favor of plaintiff. While there maybe the non-performance of thecommand as mandated exaction from them simply because they are thechildren of Jorge Rabadilla, the title holder/owner of the lot in question, doesnot warrant the filing of the present complaint. The remedy at bar must fall.Incidentally, being in the category as creditor of the left estate, it is opined thatplaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claimunder the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed isDISMISSED without prejudice.

SO ORDERED. 6




2

On appeal by plaintiff, the First Division of the Court of Appeals reversed thedecision of the trial court; ratiocinating and ordering thus:

Therefore, the evidence on record having established plaintiff-appellant's rightto receive 100 piculs of sugar annually out of the produce of Lot No. 1392;defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of themodal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligationsince 1985; and, the punitive consequences enjoined by both the codicil andthe Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper toorder the reconveyance of title over Lot No. 1392 from the estates of Jorge

Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant mustinstitute separate proceedings to re-open Aleja Belleza's estate, secure theappointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza'slegal heirs in order to enforce her right, reserved to her by the codicil, toreceive her legacy of 100 piculs of sugar per year out of the produce of Lot No.1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another oneentered ordering defendants-appellees, as heirs of Jorge Rabadilla, toreconvey title over Lot No. 1392, together with its fruits and interests, to theestate of Aleja Belleza.

SO ORDERED. 7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrixAleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that thetestamentary institution of Dr. Jorge Rabadilla is a modal institution within thepurview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal inaccordance with Article 882 of the New Civil Code on modal institutions and indeviating from the sole issue raised which is the absence or prematurity of thecause of action. Petitioner maintains that Article 882 does not find application asthere was no modal institution and the testatrix intended a mere simplesubstitution i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substitutedby the testatrix's "near descendants" should the obligation to deliver the fruits toherein private respondent be not complied with. And since the testatrix diedsingle and without issue, there can be no valid substitution and suchtestamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for thereason that the substituted heirs are not definite, as the substituted heirs aremerely referred to as "near descendants" without a definite identity or reference

as to who are the "near descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that theCourt of Appeals deviated from the issue posed before it, which was the proprietyof the dismissal of the complaint on the ground of prematurity of cause of action,there was no such deviation. The Court of Appeals found that the privaterespondent had a cause of action against the petitioner. The disquisition made onmodal institution was, precisely, to stress that the private respondent had alegally demandable right against the petitioner pursuant to subject Codicil; onwhich issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights aretransmitted from the moment of death of the decedent 10 and compulsory heirsare called to succeed by operation of law. The legitimate children anddescendants, in relation to their legitimate parents, and the widow or widower,are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, ascompulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the later

by operation of law, without need of further proceedings, and the successionalrights were transmitted to them from the moment of death of the decedent, Dr.Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property,rights and obligations of a person, not extinguished by his death. Conformably,whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil weretransmitted to his forced heirs, at the time of his death. And since obligations notextinguished by death also form part of the estate of the decedent; corollarily, theobligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, werelikewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. JorgeRabadilla, subject to the condition that the usufruct thereof would be delivered tothe herein private respondent every year. Upon the death of Dr. Jorge Rabadilla,

his compulsory heirs succeeded to his rights and title over the said property, andthey also assumed his (decedent's) obligation to deliver the fruits of the lotinvolved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, thefulfillment or performance of which is now being demanded by the latter throughthe institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaintbelow.

Petitioner also theorizes that Article 882 of the New Civil Code on modalinstitutions is not applicable because what the testatrix intended was asubstitution Dr. Jorge Rabadilla was to be substituted by the testatrix's near

descendants should there be non-compliance with the obligation to deliver thepiculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take theplace of the heir or heirs first instituted. Under substitutions in general, thetestator may either (1) provide for the designation of another heir to whom theproperty shall pass in case the original heir should die before him/her, renouncethe inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2)leave his/her property to one person with the express charge that it betransmitted subsequently to another or others, as in a fideicommissarysubstitution. 13 The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the firstheir by reason of incapacity, predecease or renunciation. 14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr.Jorge Rabadilla default due to predecease, incapacity or renunciation, thetestatrix's near descendants would substitute him. What the Codicil provides isthat, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed inthe Codicil, the property referred to shall be seized and turned over to thetestatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated topreserve the property and to transmit the same later to the second heir. 15 In thecase under consideration, the instituted heir is in fact allowed under the Codicilto alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissarysubstitution is lacking; the obligation clearly imposing upon the first heir thepreservation of the property and its transmission to the second heir. "Withoutthis obligation to preserve clearly imposed by the testator in his will, there is nofideicommissary substitution." 16 Also, the near descendants' right to inherit fromthe testatrix is not definite. The property will only pass to them should Dr. JorgeRabadilla or his heirs not fulfill the obligation to deliver part of the usufruct toprivate respondent.

Another important element of a fideicommissary substitution is also missinghere. Under Article 863, the second heir or the fideicommissary to whom theproperty is transmitted must not be beyond one degree from the first heir or thefiduciary. A fideicommissary substitution is therefore, void if the first heir is notrelated by first degree to the second heir. 17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadillaunder subject Codicil is in the nature of a modal institution and therefore, Article882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of theproperty left by the testator, or the charge imposed on him, shall not beconsidered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided thatthe instituted heir or his heirs give security for compliance with the wishes of

the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in thepreceding article cannot take effect in the exact manner stated by the testator,it shall he complied with in a manner most analogous to and in conformity withhis wishes.

The institution of an heir in the manner prescribed in Article 882 is what is knownin the law of succession as an institucion sub modo or a modal institution. In amodal institution, the testator states (1) the object of the institution, (2) thepurpose or application of the property left by the testator, or (3) the chargeimposed, by the testator upon the heir. 18 A "mode" imposes an obligation uponthe heir or legatee but it does not affect the efficacy of his rights to thesuccession. 19 On the other hand, in a conditional testamentary disposition, the




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condition must happen or be fulfilled in order for the heir to be entitled tosucceed the testator. The condition suspends but does not obligate; and themode obligates but does not suspend. 20 To some extent, it is similar to aresolutory condition. 21

From the provisions of the Codicil litigated upon, it can be gleaned unerringlythat the testatrix intended that subject property be inherited by Dr. JorgeRabadilla. It is likewise clearly worded that the testatrix imposed an obligation onthe said instituted heir and his successors-in-interest to deliver one hundredpiculs of sugar to the herein private respondent, Marlena Coscolluela Belleza,during the lifetime of the latter. However, the testatrix did not make Dr. JorgeRabadilla's inheritance and the effectivity of his institution as a devisee,

dependent on the performance of the said obligation. It is clear, though, thatshould the obligation be not complied with, the property shall be turned over tothe testatrix's near descendants. The manner of institution of Dr. Jorge Rabadillaunder subject Codicil is evidently modal in nature because it imposes a chargeupon the instituted heir without, however, affecting the efficacy of suchinstitution.

Then too, since testamentary dispositions are generally acts of liberality, anobligation imposed upon the heir should not be considered a condition unless itclearly appears from the Will itself that such was the intention of the testator. Incase of doubt, the institution should be considered as modal and not conditional.22

Neither is there tenability in the other contention of petitioner that the privaterespondent has only a right of usufruct but not the right to seize the propertyitself from the instituted heir because the right to seize was expressly limited toviolations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, asto the application of any of its provisions, the testator's intention is to beascertained from the words of the Will, taking into consideration thecircumstances under which it was made. 23 Such construction as will sustain anduphold the Will in all its parts must be adopted. 24

Subject Codicil provides that the instituted heir is under obligation to deliver OneHundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Suchobligations is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, andtheir buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwisenegotiate the property involved. The Codicil further provides that in the event thatthe obligation to deliver the sugar is not respected, Marlena Belleza Coscuellashall seize the property and turn it over to the testatrix's near descendants. Thenon-performance of the said obligation is thus with the sanction of seizure of theproperty and reversion thereof to the testatrix's near descendants. Since the saidobligation is clearly imposed by the testatrix, not only on the instituted heir butalso on his successors-in-interest, the sanction imposed by the testatrix in caseof non-fulfillment of said obligation should equally apply to the instituted heir and

his successors-in-interest.Similarly unsustainable is petitioner's submission that by virtue of the amicablesettlement, the said obligation imposed by the Codicil has been assumed by thelessee, and whatever obligation petitioner had become the obligation of thelessee; that petitioner is deemed to have made a substantial and constructivecompliance of his obligation through the consummated settlement between thelessee and the private respondent, and having consummated a settlement withthe petitioner, the recourse of the private respondent is the fulfillment of theobligation under the amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act bywhich a person disposes of his property, to take effect after his death. 25 Sincethe Will expresses the manner in which a person intends how his properties bedisposed, the wishes and desires of the testator must be strictly followed. Thus, aWill cannot be the subject of a compromise agreement which would therebydefeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. Nopronouncement as to costs.

SO ORDERED.

[G.R. No. 89783. February 19, 1992.]

MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. LOCSIN, AUREA B. LOCSIN,MATILDE L. CORDERO, SALVADOR B. LOCSIN and MANUEL V. DEL ROSARIO,petitioners, vs. THE HON. COURT OF APPEALS, JOSE JAUCIAN, FLORENTINOJAUCIAN, MERCEDES JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA J. BORJA,HEIRS OF EDUARDO JAUCIAN and HEIRS OF VICENTE JAUCIAN, respondents.

Reversal of the decision of the Court of Appeals in CA-G.R. No. CV-11186 ³affirming with modification the judgment of the Regional Trial Court of Albay in

favor of the plaintiffs in Civil Case NO. 7152 entitled "Jose Jaucian, et al. v.Mariano B. Locsin, et al.," an action for recovery of real property with damages ³is sought in these proceedings initiated by petition for review on certiorari inaccordance with Rule 45 of the Rules of Court.

The petition was initially denied due course and dismissed by this Court. It washowever reinstated upon a second motion for reconsideration filed by thepetitioners, and the respondents were required to comment thereon. The petitionwas thereafter given due course and the parties were directed to submit their memorandums. These, together with the evidence, having been carefullyconsidered, the Court now decides the case.

First, the facts as the Court sees them in light of the evidence on record:

The late Getulio Locsin had three children named Mariano, Julian and Magdalena,all surnamed Locsin. He owned extensive residential and agricultural propertiesin the provinces of Albay and Sorsogon. After his death, his estate was dividedamong his three (3) children as follows:

(a) the coconut lands of some 700 hectares in Bual, Pilar, Sorsogon, wereadjudicated to his daughter, Magdalena Locsin;

(b) 106 hectares of coconut lands were given to Julian Locsin, father of thepetitioners Julian, Mariano, Jose, Salvador, Matilde, and Aurea, allsurnamed Locsin;

(c) more than forty (40) hectares of coconut lands in Bogtong, eighteen (18)hectares of riceland in Daraga, and the residential lots in Daraga, Albay andin Legazpi City went to his son Mariano, which Mariano brought into hismarriage to Catalina Jaucian in 1908. Catalina, for her part, brought into themarriage untitled properties which she had inherited from her parents,Balbino Jaucian and Simona Anson. These were augmented by other properties acquired by the spouses in the course of their union, 1 whichhowever was not blessed with children.

Eventually, the properties of Mariano and Catalina were brought under theTorrens System. Those that Mariano inherited from his father, Getulio Locsin,were surveyed cadastrally and registered in the name of "Mariano Locsin marriedto Catalina Jaucian."

Mariano Locsin executed a Last Will and Testament instituting his wife, Catalina,as the sole and universal heir of all his properties 3 . The will was drawn up byhis wife's nephew and trusted legal adviser, Attorney Salvador Lorayes. AttorneyLorayes disclosed that the spouses being childless, they had agreed that their properties, after both of them shall have died should revert to their respectivesides of the family, i.e., Mariano's properties would go to his "Locsin relatives"(i.e., brothers and sisters or nephews and nieces), and those of Catalina to her "Jaucian relatives.

Don Mariano Locsin died of cancer on September 14, 1948 after a lingeringillness. In due time, his will was probated in Special Proceedings No. 138, CFI of Albay without any opposition from both sides of the family. As directed in his will,Doña Catalina was appointed executrix of his estate. Her lawyer in the probateproceedings was Attorney Lorayes. In the inventory of her husband's estate 5which she submitted to the probate court for approval, 6 Catalina declared that"all items mentioned from Nos. 1 to 33 are the private properties of the deceasedand form part of his capital at the time of the marriage with the surviving spouse,while items Nos. 34 to 42 are conjugal." 7

Among her own and Don Mariano's relatives, Doña Catalina was closest to her nephew, Attorney Salvador Lorayes, her nieces, Elena Jaucian, Maria Lorayes-Cornelio and Maria Olbes-Velasco, and the husbands of the last two: HostilioCornelio and Fernando Velasco. 8 Her trust in Hostilio Cornelio was such thatshe made him custodian of all the titles of her properties; and before shedisposed of any of them, she unfailingly consulted her lawyer-nephew, AttorneySalvador Lorayes. It was Atty. Lorayes who prepared the legal documents and,more often than not, the witnesses to the transactions were her nieces ElenaJaucian, Maria Lorayes-Cornelio, Maria Olbes-Velasco, or their husbands. Her niece, Elena Jaucian, was her life-long companion in her house.

Don Mariano relied on Doña Catalina to carry out the terms of their compact,hence, nine (9) years after his death, as if in obedience to his voice from thegrave, and fully cognizant that she was also advancing in years, Doña Catalinabegan transferring, by sale, donation or assignment, Don Mariano's, as well asher own, properties to their respective nephews and nieces. She made thefollowing sales and donations of properties which she had received from her husband's estate, to his Locsin nephews and nieces:

EXHIBIT DATE PARTICULARSAREA/ PRICEWITNESSES




4

SQ.M.

23 Jan. 26, 1957 Deed of Absolute Sale962 P481

in favor of Mariano Locsin

1-JRL Apr. 7, 1966 Deed of Sale430,203 P20,000

in favor of Jose R. Locsin

1-JJL Mar. 22, 1967 Deed of Sale5,000 P1,000Hostilio Cornelio

in favor of (Lot 2020) Helen M. Jaucian

Julian Locsin

1 Nov. 29, 1974 Deed of Donation26,509

in favor of Aurea

Locsin, Matilde L.

Cordero and Salvador

Locsin

2 Feb. 4, 1975 Deed of Donation34,045

in favor of Aurea

Locsin, Matilde L.

Cordero and Salvador

Locsin

3 Sept. 9, 1975 Deed of Donation(Lot 2059)

in favor of Aurea

Locsin, Matilde L.

Cordero and

Salvador Locsin

4 July 15, 1974 Deed of Absolute1,424Hostilio Cornelio

Sale in favor of

Fernando Velasco

Aurea B. Locsin5 July 15, 1974 Deed of Absolute

1,456 P5,720Hostilo Cornelio

Sale in favor of

Aurea B. Locsin.

6 July 15, 1974 Deed of Absolute1,237 P5720 -

ditto-

Sale in favor of

Aurea B. Locsin.

7 July 15, 1974 Deed of Absolute1,104 P4,050 -

ditto-

Sale in favor of Aurea B. Locsin.

15 Nov. 26, 1974 Deed of Sale in261 P4930 -

ditto-

favor of Aurea

Locsin.

16 Oct. 17, 1975 Deed of Sale in533 P2,000Delfina Anson

favor of Aurea Locsin M. Acabado

17 Nov. 26, 1975 Deed of Sale in373 P1,000Leonor Satuito

favor of Aurea

Locsin.

19 Sept. 1, 1975 Conditional1,130 P3,000 -

ditto-

Donation in favor

of Mariano Locsin.

1-MVRJ Dec. 29, 1972 Deed of 1,510.66 P1,000Delfina Anson

Reconveyance(Lot 2155) Antonio Illegible

in favor of Manuel

V. del Rosario

whose maternal

grandfather was

Getulio Locsin.

2-MVRJ June 30, 1973 Deed of 319.34 P500Antonio Illegible

Reconveyance(Lot 2155)

in favor of Salvador

Nical Manuel V.

del Rosario but

the rentals from

bigger portion of Lot

2155 leased to Filoil

Refinery were

assigned to Maria

Jaucian Lorayes

Cornelio

Of her own properties, Doña Catalina conveyed the following to her own nephews

and nieces and others:EXHIBIT DATE PARTICULARSAREA/SQ.M. PRICE

2-JJL July 16, 1964 Deed of Sale in5,000 P1,000

favor Vicente(lot 2020)

Jaucian(6,825 sqm. when

resurveyed)

24 Feb. 12, 1973 Deed of Absolute100 P1,000

Sale in favor of

Francisco Maquiniana26 July 15, 1973 Deed of Absolute130 P1,300

Sale in favor of

Francisco Maquiniana

27 May 3, 1973 Deed of Absolute100 P1,000

Sale in favor of

Ireneo Mamia

28 May 3, 1973 Deed of Absolute75 P750




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Sale in favor of

Zenaida Buiza.

29 May 3, 1973 Deed of Absolute150 P1,500

Sale in favor of

Felisa Morjella.

30 Apr. 3, 1973 Deed of Absolute31 P1,000

Sale in favor of

Inocentes Moticinos.31 Feb. 12, 1973 Deed of Absolute150 P1,500

Sale in favor of

Casimiro Mondevil

32 Mar. 1, 1973 Deed of Absolute112 P1,000

Sale in favor of

Juan Saballa.

25 Dec. 28, 1973 Deed of Absolute250 P2,500

Sale in favor of

Rogelio Marticio

Doña Catalina died on July 6, 1977.Four years before her death, she had made a will on October 22, 1973 affirmingand ratifying the transfers she had made during her lifetime in favor of her husband's, and her own, relatives. After the reading of her will, all the relativesagreed that there was no need to submit it to the court for probate because theproperties devised to them under the will had already been conveyed to them bythe deceased when she was still alive, except some legacies which the executor of her will or estate, Attorney Salvador Lorayes, proceeded to distribute.

In 1989, or six (6) years after Doña Catalina's demise, some of her Jauciannephews and nieces who had already received their legacies and hereditaryshares from her estate, filed action in the Regional Trial Court of Legaspi City(Branch VIII, Civil Case No. 7152) to recover the properties which she hadconveyed to the Locsins during her lifetime, alleging that the conveyances werein officious, without consideration, and intended solely to circumvent the laws onsuccession. Those who were closest to Doña Catalina did not join the action.

After the trial, judgment was rendered on July 8, 1985 in favor of the plaintiffs

(Jaucian), and against the Locsin defendants, the dispositive part of which reads:"WHEREFORE, this Court renders judgment for the plaintiffs andagainst the defendants:

"(1) declaring the plaintiffs, except the heirs of Josefina J. Borjaand Eduardo Jaucian, who withdrew, the rightful heirs andentitled to the entire estate, in equal portions, of CatalinaJaucian Vda. de Locsin, being the nearest collateral heirs byright of representation of Juan and Gregorio, both surnamedJaucian, and full-blood brothers of Catalina;

"(2) declaring the deeds of sale, donations, reconveyance andexchange and all other instruments conveying any part of theestate of Catalina J. Vda. de Locsin including, but not limitedto those in the inventory of known properties (Annex B of thecomplaint) as null and void ab-initio;

"(3). ordering the Register of Deeds of Albay and/or Legaspi City

to cancel all certificates of title and other transfers of the realproperties, subject of this case, in the name of defendants,and derivatives therefrom, and issue new ones to theplaintiffs;

"(4) ordering the defendant's, jointly and severally, to reconveyownership and possession of all such properties to theplaintiffs, together with all muniments of title properlyendorsed and delivered, and all the fruits and incomesreceived by the defendants from the estate of Catalina, withlegal interest from the filing of this action; and wherereconveyance and delivery cannot be effected for reasonsthat might have intervened and prevent the same, defendantsshall pay for the value of such properties, fruits and incomes

received by them, also with legal interest from the filing of this case;

"(5) ordering each of the defendants to pay the plaintiffs theamount of P30,000.00 as exemplary damages; and the further sum of P20,000.00 each as moral damages; and

"(6) ordering the defendants to pay the plaintiffs attorney's feesand litigation expenses, in the amount of P30,000.00 withoutprejudice to any contract between plaintiffs and counsel.

"Costs against the defendants." 9

The Locsins appealed to the Court of Appeals (CA-G.R. No. CV-11186) which

rendered its now appealed judgment on March 14, 1989, affirming the trial court'sdecision.

The petition has merit and should be granted.

The trial court and the Court of Appeals erred in declaring the privaterespondents, nephews and nieces of Doña Catalina J. Vda. de Locsin, entitled toinherit the properties which she had already disposed of more than ten (10) yearsbefore her death. For those properties did not form part of her hereditary estate,i.e., "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the openingof the succession." 10 The rights to a person's succession are transmitted fromthe moment of his death, and do not vest in his heirs until such time. 11Property which Doña Catalina had transferred or conveyed to other personsduring her lifetime no longer formed part of her estate at the time of her death towhich her heirs may lay claim. Had she died intestate, only the property thatremained in her estate at the time of her death devolved to her legal heirs; andeven if those transfers were, one and all, treated as donations, the right arising

under certain circumstances to impugn and compel the reduction or revocationof a decedent's gifts inter vivos does not inure to the respondents since neither they nor the donees are compulsory (or forced) heirs. 12

There is thus no basis for assuming an intention on the part of Doña Catalina, intransferring the properties she had received from her late husband to hisnephews and nieces, an intent to circumvent the law in violation of the privaterespondents' rights to her succession. Said respondents are not her compulsoryheirs, and it is not pretended that she had any such, hence there were nolegitimes that could conceivably be impaired by any transfer of her propertyduring her lifetime. All that the respondents had was an expectancy that innowise restricted her freedom to dispose of even her entire estate subject only tothe limitation set forth in Art. 750, Civil Code which, even if it were breached, therespondents may not invoke:

"Art 750. The donation may comprehend all the present property of the donor, or part thereof, provided he reserves, in, full ownership or in usufruct, sufficient means for the support of himself, and of all

relatives who, at the time of the acceptance of the donation, are bylaw entitled to be supported by the donor. Without such reservation,the donation shall be reduced on petition of any person affected.(634a).

The lower court capitalized on the fact that Doña Catalina was already 90 yearsold when she died on July 6, 1977. It insinuated that because of her advancedyears she may have been imposed upon, or unduly influenced and morallypressured by her husband's nephews and nieces (the petitioners) to transfer tothem the properties which she had inherited from Don Mariano's estate. Therecords do not support that conjecture.

For as early as 1957, or twenty-eight (28) years before her death, Doña Catalinahad already begun transferring to her Locsin nephews and nieces the propertieswhich she received from Don Mariano. She sold a 962-sq.m. lot on January 26,1957 to his nephew and namesake Mariano Locsin II. 13 On April 7, 1966, or 19years before she passed away, she also sold a 43-hectare land to another Locsinnephew, Jose R. Locsin. 14 The next year, or on March 22, 1967, she sold a

5,000-sq.m. portion of Lot 2020 to Julian Locsin. 15On March 27, 1967, Lot 2020 16 was partitioned by and among Doña Catalina,Julian Locsin, Vicente Jaucian and Agapito Lorete. 17 At least Vicente Jaucian,among the other respondents in this case, is estopped from assailing thegenuineness and due execution of the sale of portions of Lot 2020 to himself,Julian Locsin, and Agapito Lorete, and the partition agreement that he (Vicente)concluded with the other co-owners of Lot 2020.

Among Doña Catalina's last transactions before she died in 1977 were the salesof property which she made in favor of Aurea Locsin and Mariano Locsin in 1975.18

There is not the slightest suggestion in the record that Doña Catalina wasmentally incompetent when she made those dispositions. Indeed, how can any




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such suggestion be made in light of the fact that even as she was transferringproperties to the Locsins, she was also contemporaneously disposing of her other properties in favor of the Jaucians? She sold to her nephew, VicenteJaucian, on July 16, 1964 (21 years before her death) one-half (or 5,000 sq.m.) of Lot 2020. Three years later, or on March 22, 1967, she sold another 5,000 sq.m. of the same lot to Jualian Locsin. 19

From 1972 to 1973 she made several other transfers of her properties to her relatives and other persons, namely: Francisco Maquiniana, Ireneo Mamia,Zenaida Buiza, Feliza Morjella, Inocentes Motocinos, Casimiro Mondevil, JuanSaballa and Rogelio Marticio. 20 None of those transactions was impugned bythe private respondents.

In 1975, or two years before her death, Doña Catalina sold some lots not only toDon Mariano's niece, Aurea Locsin, and his nephew, Mariano Locsin II, 21 butalso to her niece, Mercedes Jaucian Arboleda. 22 If she was competent to makethat conveyance to Mercedes, how can there be any doubt that she was equallycompetent to transfer her other pieces of property to Aurea and Mariano II?

The trial court's belief that Don Mariano Locsin bequeathed his entire estate tohis wife, from a "consciousness of its real origin" which carries the implicationthat said estate consisted of properties which his wife had inherited from her parents, flies in the teeth of Doña Catalina's admission in her inventory of thatestate, that "items 1 to 33 are the private properties of the deceased (DonMariano) and forms (sic) part of his capital at the time of the marriage with thesurviving spouse, while items 34 to 42 are conjugal properties, acquired duringthe mirriage." She would have known better than anyone else whether the listingincluded any of her paraphernal property so it is safe to assume that none was infact included. The inventory was signed by her under oath, and was approved bythe probate court in Special Proceedings No. 138 of the Court of First Instance of

Albay. It was prepared with the assistance of her own nephew and counsel, Atty.Salvador Lorayes, who surely would not have prepared a false inventory thatwould have been prejudicial to his aunt's interest and to his own, since he stoodto inherit from her eventually.

This Court finds no reason to disbelieve Attorney Lorayes' testimony that beforeDon Mariano died, he and his wife (Doña Catalina), being childless, had agreedthat their respective properties should eventually revert to their respective linealrelatives. As the trusted legal adviser of the spouses and a full-blood nephew of Doña Catalina, he would not have spun a tale out of thin air that would alsoprejudice his own interest.

Little significance, it seems, has been attached to the fact that among DoñaCatalina's nephews and nieces, those closest to her: (a) her lawyer-nephewAttorney Salvador Lorayes; (b) her niece and companion Elena Jaucian; (c) her nieces Maria Olbes-Velasco and Maria Lorayes-Cornelio and their respectivehusbands, Fernando Velasco and Hostilio Cornelio, did not join the suit to annuland undo the dispositions of property which she made in favor of the Locsins,

although it would have been to their advantage to do so. Their desistancepersuasively demonstrates that Doña Catalina acted as a completely free agentwhen she made the conveyances in favor of the petitioners. In fact, consideringtheir closeness to Doña Catalina it would have been well-nigh impossible for thepetitioners to employ "fraud, undue pressure, and subtle manipulations" on her to make her sell or donate her properties to them. Doña Catalina's niece, ElenaJaucian, daughter of her brother, Eduardo Jaucian, lived with her in her house.Her nephew-in-law, Hostilio Cornelio, was the custodian of the titles of her properties. The sales and donations which she signed in favor of the petitionerswere prepared by her trusted legal adviser and nephew, Attorney Salvador Lorayes. The (1) deed of donation dated November 29, 1974 23 in favor of AureaLocsin, (2) another deed of donation dated February 4, 1975 24 in favor of Matilde Cordero, and (3) still another deed dated September 9, 1975 25 in favor of Salvador Lorayes, were all witnessed by Hostillo Cornelio (who is married toDoña Catalina's niece, Maria Lorayes) and Fernando Velasco who is married toher another niece, Maria Olbes. 26 The sales which she made in favor of Aurea

Locsin on July 15, 1974 27 were witnessed by Hostillo Cornelio and ElenaJaucian. Given those circumstances, said transactions could not have beenanything but free and voluntary acts on her part.

Apart from the foregoing considerations, the trial court and the Court of Appealserred in not dismissing this action for annulment and reconveyance on theground of prescription. Commenced decades after the transactions had beenconsummated, and six (6) years after Doña Catalina's death, it prescribed four (4)years after the subject transactions were recorded in the Registry of Property,28 whether considered an action based on fraud, or one to redress an injury tothe rights of the plaintiffs. The private respondents may not feign ignorance of said transactions because the registration of the deeds was constructive noticethereof to them and the whole world. 29

WHEREFORE, the petition for review is granted. The decision dated March 14,1989 of the Court of Appeals in CA-G.R. CV No. 11186 is REVERSED and SETASIDE. The private respondents' complaint for annulment of contracts andreconveyance of properties in Civil Case No. 7152 of the Regional Trial Court,Branch VIII of Legazpi City, is DISMISSED, with costs against the privaterespondents, plaintiffs therein.

SO ORDERED.

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

In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA,petitioner, vs. JULIANA LACUESTA, ET AL., respondents.

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 dialectand contains the following attestation clause:

"We, the undersigned, by these presents do declare that theforegoing testament of Antero Mercado was signed by himself andalso by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three thecontinuation of this attestation clause; this will is written in Ilocanodialect which is spoken and understood by the testator, and itbears the corresponding number in letter which compose of threepages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.

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

(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES

(Sgd.) BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote thename of Antero Mercado, followed below by "A ruego del testador" and the nameof Florentino Javier. Antero Mercado is alleged to have written a crossimmediately after his name. The Court of Appeals, reversing the judgment of theCourt 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 atthe 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) tocertify that after the signing of the name of the testator by Atty. Javier at theformer's request said testator has written a cross at the end of his name and onthe left margin of the three pages of which the will consists and at the endthereof; (3) to certify that the three witnesses signed the will in all the pagesthereon 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 recitalbecause the cross written by the testator after his name is a sufficient signatureand the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory isthat the cross is as much a signature as a thumbmark, the latter having been heldsufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs.Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

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

What has been said makes it unnecessary for us to determine whether there is a

sufficient recital in the attestation clause as to the signing of the will by thetestator in the presence of the witnesses, and by the latter in the presence of thetestator and of each other.

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

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOSCABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICARAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by




7

his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,petitioners,vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

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

The records show that on December 5, 1978, Mateo Caballero, a widower withoutany children and already in the twilight years of his life, executed a last will andtestament at his residence in Talisay, Cebu before three attesting witnesses,namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The saidtestator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notarypublic, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declaredtherein, among other things, that the testator was leaving by way of legacies anddevises his real and personal properties to Presentacion Gaviola, Angel Abatayo,Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, allof whom do not appear to be related to the testator.

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petitiondocketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. Theprobate court set the petition for hearing on August 20, 1979 but the same andsubsequent scheduled hearings were postponed for one reason to another. OnMay 29, 1980, the testator passed away before his petition could finally be heardby the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legateesnamed in the will, sough his appointment as special administrator of the

testator's estate, the estimated value of which was P24,000.00, and he was soappointed by the probate court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,instituted a second petition, entitled "In the Matter of the Intestate Estate of MateoCaballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, hereinpetitioners had their said petition intestate proceeding consolidated with SpecialProceeding No. 3899-R in Branch II of the Court of First Instance of Cebu andopposed thereat the probate of the Testator's will and the appointment of aspecial administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known asBranch XV of the Regional Trial Court of Cebu, appointed William Cabrera asspecial administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued anorder for the return of the records of Special Proceeding No. 3965-R to thearchives since the testate proceeding for the probate of the will had to be heardand resolved first. On March 26, 1984 the case was reraffled and eventually

assigned to Branch XII of the Regional Trial Court of Cebu where it remained untilthe conclusion of the probate proceedings. 6

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

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

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

. . . The self-serving testimony of the two witnesses of the oppositors cannotovercome the positive testimonies of Atty. Filoteo Manigos and CiprianoLabuca who clearly told the Court that indeed Mateo Caballero executed theLast Will and Testament now marked Exhibit "C" on December 5, 1978.Moreover, the fact that it was Mateo Caballero who initiated the probate of hisWill during his lifetime when he caused the filing of the original petition nowmarked Exhibit "D" clearly underscores the fact that this was indeed his LastWill. At the start, counsel for the oppositors manifested that he would want thesignature of Mateo Caballero in Exhibit "C" examined by a handwriting expert

of the NBI but it would seem that despite their avowal and intention for theexamination of this signature of Mateo Caballero in Exhibit "C", nothing cameout of it because they abandoned the idea and instead presented AureaCaballero and Helen Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will andTestament of Mateo Caballero and that it was executed in accordance with allthe requisites of the law. 9

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

On October 15, 1991, respondent court promulgated its decision 10 affirming thatof the trial court, and ruling that the attestation clause in the last will of MateoCaballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may beconsidered as having substantialy complied with the requirements of Art. 805of the Civil Code. What appears in the attestation clause which the oppositorsclaim to be defective is "we do certify that the testament was read by him andthe attestator, Mateo Caballero, has published unto us the foregoing willconsisting of THREE PAGES, including the acknowledgment, each pagenumbered correlatively in letters of the upper part of each page, as his LastWill and Testament, and he has signed the same and every page thereof, onthe spaces provided for his signature and on the left hand margin in thepresence of the said testator and in the presence of each and all of us(emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need bepresented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another.Or as the language of the law would have it that the testator signed the will "inthe presence of the instrumental witnesses, and that the latter witnessed andsigned the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with thewordings of Art. 805 but (sic) the phrase as formulated is in substantialcompliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court,but the same was denied in the latter's resolution of January 14, 1992, 12 hencethis appeal now before us. Petitioners assert that respondent court has ruledupon said issue in a manner not in accord with the law and settled jurisprudenceon the matter and are now questioning once more, on the same ground as thatraised before respondent court, the validity of the attestation clause in the lastwill of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made in aid of the rationalefor our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person ispermitted, with the formalities prescribed by law, to control to a certain degreethe disposition of his estate after his death. 13 Under the Civil Code, there are twokinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of theCode. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at theend thereof by the testator himself or by the testator's name written by someother person in his presence, and by his express direction, and attested andsubscribed 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 theinstrumental witnesses of the will, shall also sign, as aforesaid, each and everypage thereof, except the last, on the left margin, and all the pages shall benumbered correlatively in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will iswritten, 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, inthe presence of the instrumental witnesses, and that the latter witnessed andsigned 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 witness, it shall beinterpreted to them.




8

In addition, the ordinary will must be acknowledged before a notary public by atestator and the attesting witness. 15 hence it is likewise known as notarial will.Where the attestator is deaf or deaf-mute, Article 807 requires that he mustpersonally read the will, if able to do so. Otherwise, he should designate twopersons who would read the will and communicate its contents to him in apracticable manner. On the other hand, if the testator is blind, the will should beread to him twice; once, by anyone of the witnesses thereto, and then again, bythe notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one thatis entirely written, dated, and signed by the testator himself. This kind of will,unlike the ordinary type, requires no attestation by witnesses. A common

requirement in both kinds of will is that they should be in writing and must havebeen executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause neednot be written in a language or dialect known to the testator since it does notform part of the testamentary disposition. Furthermore, the language used in theattestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, theattestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attestingwitnesses certify that the instrument has been executed before them and to themanner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by thewitnesses, it gives affirmation to the fact that compliance with the essentialformalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the executionof a particular will, so that in case of failure of the memory of the attesting

witnesses, or other casualty, such facts may still be proved.Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presenceof the attesting witnesses; and (3) that the attesting witnesses witnessed thesigning by the testator of the will and all its pages, and that said witnesses alsosigned the will and every page thereof in the presence of the testator and of oneanother.

The purpose of the law in requiring the clause to state the number of pages onwhich the will is written is to safeguard against possible interpolation or omissionof one or some of its pages and to prevent any increase or decrease in the pages;

23 whereas the subscription of the signature of the testator and the attestingwitnesses is made for the purpose of authentication and identification, and thusindicates that the will is the very same instrument executed by the testator andattested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declarethe due execution of the will as embodied in the attestation clause. 25 Theattestation clause, therefore, provide strong legal guaranties for the dueexecution of a will and to insure the authenticity thereof. 26 As it appertains onlyto the witnesses and not to the testator, it need be signed only by them. 27 Whereit is left unsigned, it would result in the invalidation of the will as it would bepossible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills, in the followingmanner:

The underlying and fundamental objectives permeating the provisions on thelaw 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 inexpressing his last wishes, but with sufficient safeguards and restrictions toprevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to theformalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that itis comprised of three sheets all of which have been numbered correlatively, withthe left margin of each page thereof bearing the respective signatures of thetestator and the three attesting witnesses. The part of the will containing thetestamentary dispositions is expressed in the Cebuano-Visayan dialect and issigned at the foot thereof by the testator. The attestation clause in question, onthe other hand, is recited in the English language and is likewise signed at theend thereof by the three attesting witnesses hereto. 30 Since it is the proverbialbone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postaladdresses appear on the Opposite of our respective names, we do herebycertify that the Testament was read by him and the testator, MATEOCABALLERO; has published unto us the foregoing Will consisting of THREEPAGES, including the Acknowledgment, each page numbered correlatively inthe letters on the upper part of each page, as his Last Will and Testament andhe has the same and every page thereof, on the spaces provided for hissignature and on the left hand margin, in the presence of the said testator andin the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest andsubscribe to the will in the presence of the testator and of one another.

"Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and tocertify the facts required to constitute an actual and legal publication; but tosubscribe a paper published as a will is only to write on the same paper thenames of the witnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing thetestator's execution of the will in order to see and take note mentally that thosethings are done which the statute requires for the execution of a will and that thesignature of the testator exists as a fact. On the other hand, subscription is thesigning of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As itinvolves a mental act, there would be no means, therefore, of ascertaining by aphysical examination of the will whether the witnesses had indeed signed in thepresence of the testator and of each other unless this is substantially expressedin the attestation.

It is contended by petitioners that the aforequoted attestation clause, incontravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that theattesting witnesses the testator sign the will and all its pages in their presenceand that they, the witnesses, likewise signed the will and every page thereof inthe presence of the testator and of each other. We agree.

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

The phrase "and he has signed the same and every page thereof, on the spacesprovided for his signature and on the left hand margin," obviously refers to thetestator and not the instrumental witnesses as it is immediately preceded by thewords "as his Last Will and Testament." On the other hand, although the words

"in the presence of the testator and in the presence of each and all of us" may, atfirst blush, appear to likewise signify and refer to the witnesses, it must, however,be interpreted as referring only to the testator signing in the presence of thewitnesses since said phrase immediately follows the words "he has signed thesame and every page thereof, on the spaces provided for his signature and on theleft hand margin." What is then clearly lacking, in the final logical analysis , is thestatement that the witnesses signed the will and every page thereof in thepresence of the testator and of one another.

It is our considered view that the absence of that statement required by law is afatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct inpointing out that the aforestated defect in the attestation clause obviously cannotbe characterized as merely involving the form of the will or the language usedtherein which would warrant the application of the substantial compliance rule, ascontemplated in the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper

pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not provedthat the will was in fact executed and attested in substantial compliance withall the requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the endthereof and at the left margin of each page by the three attesting witnesses, itcertainly cannot be conclusively inferred therefrom that the said witness affixedtheir respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures onlyestablishes the fact that it was indeed signed, but it does not prove that theattesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the




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testator and the witnesses sign on various days or occasions and in variouscombinations, the will cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regardingArticle 809, wherein he urged caution in the application of the substantialcompliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be suppliedby an examination of the will itself: whether all the pages are consecutivelynumbered; whether the signatures appear in each and every page; whether thesubscribing witnesses are three or the will was notarized. All theses are factsthat the will itself can reveal, and defects or even omissions concerning themin 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 eachother must substantially appear in the attestation clause, being the only checkagainst perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfectionsmust only be with respect to the form of the attestation or the language employedtherein. Such defects or imperfections would not render a will invalid should it beproved that the will was really executed and attested in compliance with Article805. In this regard, however, the manner of proving the due execution andattestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totallyomits the fact that the attesting witnesses signed each and every page of the willin the presence of the testator and of each other. 35 In such a situation, the defectis not only in the form or language of the attestation clause but the total absenceof a specific element required by Article 805 to be specifically stated in theattestation clause of a will. That is precisely the defect complained of in thepresent case since there is no plausible way by which we can read into thequestioned attestation clause statement, or an implication thereof, that theattesting witness did actually bear witness to the signing by the testator of thewill and all of its pages and that said instrumental witnesses also signed the willand every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revokedor relied on by respondents since it presupposes that the defects in theattestation clause can be cured or supplied by the text of the will or aconsideration of matters apparent therefrom which would provide the data notexpressed in the attestation clause or from which it may necessarily be gleanedor clearly inferred that the acts not stated in the omitted textual requirementswere actually complied within the execution of the will. In other words, defectsmust be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performedby the attesting witnesses can be supplied by only extrinsic evidence thereof,since an overall appreciation of the contents of the will yields no basiswhatsoever from with such facts may be plausibly deduced. What privaterespondent insists on are the testimonies of his witnesses alleging that they sawthe compliance with such requirements by the instrumental witnesses, obliviousof the fact that he is thereby resorting to extrinsic evidence to prove the sameand would accordingly be doing by the indirection what in law he cannot dodirectly.

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

One view advance the liberal or substantial compliance rule. This was first laiddown in the case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door againstbad faith and fraud, to avoid substitution of wills and testaments and toguarantee their truth and authenticity. Therefore, the laws on this subject shouldbe interpreted in such a way as to attain these primordial ends. Nonetheless, itwas also emphasized that one must not lose sight of the fact that it is not theobject of the law to restrain and curtail the exercise of the right to make a will,hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirelyunnecessary, useless and frustrative of the testator's last will, must bedisregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe theformalities that should be observed in the execution of wills are mandatory innature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs.Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify theseemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed thewill and each and every page thereof on the left margin in the presence of thetestator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned,appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil.,405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sanovs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of aseries of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476),continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs.Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal andAguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely,those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestationclause which does not recite that the witnesses signed the will and each andevery page thereof on the left margin in the presence of the testator isdefective, and such a defect annuls the will. The case of Uy Coque vs. Sioca,supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not

mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,wherein it was held that the attestation clause must estate the fact that thetestator and the witnesses reciprocally saw the signing of the will, for such anact cannot be proved by the mere exhibition of the will, if it is not statedtherein. It was also held that the fact that the testator and the witnesses signedeach and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to statesuch evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do theyadmit inconsistency in doctrine. Yet here, unless aided impossible to reconcilethe Mojal and Quintana decisions. They are fundamentally at variance. If werely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points maybe mentioned. In the first place, the Mojal, decision was concurred in by onlyfour members of the court, less than a majority, with two strong dissentingopinions; the Quintana decision was concurred in by seven members of the

court, a clear majority, with one formal dissent. In the second place, the Mojaldecision was promulgated in December, 1924, while the Quintana decision waspromulgated in December, 1925; the Quintana decision was thus subsequentin point of time. And in the third place, the Quintana decision is believed morenearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The lawof the case is here found in section 61 of the Code of Civil Procedure asamended by Act No. 2645, and in section 634 of the same Code, asunamended. It is in part provided in section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further provided in the same section that"The attestation shall state the number of sheets or pages used, upon whichthe will is written, and the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, under his expressdirection, in the presence of three witnesses, and the latter witnessed andsigned the will and all pages thereof in the presence of the testator and of eachother." Codal section 634 provides that "The will shall be disallowed in either

of the following case: 1. If not executed and attested as in this Act provided."The law not alone carefully makes use of the imperative, but cautiously goesfurther and makes use of the negative, to enforce legislative intention. It is notwithin the province of the courts to disregard the legislative purpose soemphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,and, to the extent necessary, modify the decision in the case of Nayve vs.Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of theCourt that once more appeared to revive the seeming diversity of views that wasearlier threshed out therein. The cases of Quinto vs. Morata, 49 Rodriguez vs.Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the wayof the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.




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Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from thestrict interpretation rule and established a trend toward an application of theliberal view.

The Code Commission, cognizant of such a conflicting welter of views and of theundeniable inclination towards a liberal construction, recommended thecodification of the substantial compliance rule, as it believed this rule to be inaccord with the modern tendency to give a liberal approach to the interpretationof wills. Said rule thus became what is now Article 809 of the Civil Code, with this

explanation of the Code Commission:The present law provides for only one form of executing a will, and that is, inaccordance with the formalities prescribed by Section 618 of the Code of CivilProcedure as amended by Act No. 2645. The Supreme Court of the Philippineshad previously upheld the strict compliance with the legal formalities and hadeven said that the provisions of Section 618 of the Code of Civil Procedure, asamended regarding the contents of the attestation clause were mandatory, andnon-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil.405). These decisions necessarily restrained the freedom of the testator indisposing of his property.

However, in recent years the Supreme Court changed its attitude and hasbecome more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R.No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939;Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No.47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practicallygone back to the original provisions of Section 618 of the Code of CivilProcedure before its amendment by Act No. 2645 in the year 1916. To turn thisattitude into a legislative declaration and to attain the main objective of theproposed Code in the liberalization of the manner of executing wills, article829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue andimproper 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 substantialcompliance with all the requirements of article 829." 65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer anypuzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line withprecision. They do not allow evidence aliunde to fill a void in any part of thedocument or supply missing details that should appear in the will itself. They onlypermit a probe into the will, an exploration into its confines, to ascertain itsmeaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish anyfear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which canbe supplied by an examination of the will itself, without the need of resorting toextrinsic evidence, will not be fatal and, correspondingly, would not obstruct theallowance to probate of the will being assailed. However, those omissions whichcannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. 67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo isaccordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and toREVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with thesettlement of the estate of the said decedent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

[G.R. No. L-36033. November 5, 1982.]

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OFDOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON.AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern Leyte,(Branch III, Maasin), respondent.

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 theMatter of the Petition for Probate of the Will of Dorotea Perez, Deceased;Apolonio Taboada, Petitioner," which denied the probate of the will, the motionfor reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attachedthe alleged last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entiretestamentary dispositions and is signed at the end or bottom of the page by thetestatrix 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 13) attesting witnessesand at the left hand margin by the testatrix.

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

The trial court, thru then Presiding Judge Ramon C. Pamatian issued thequestioned order denying the probate of the will of Dorotea Perez for want of aformality in its execution. In the same order, the petitioner was also required tosubmit the names of the intestate heirs with their corresponding addresses sothat they could be properly notified and could intervene in the summarysettlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed amanifestation and/or motion ex parte praying for a thirty-day period within whichto deliberate on any step to be taken as a result of the disallowance of the will. Healso 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 probateof 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 histransfer to his new station at Pasig, Rizal. The said motions or incidents were stillpending resolution when respondent Judge Avelino S. Rosal assumed theposition of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of specialadministrator.

Subsequently, the new Judge denied the motion for reconsideration as well asthe manifestation and/or motion filed ex parte. In the same order of denial, themotion for the appointment of special administrator was likewise denied becauseof the petitioner's failure to comply with the order requiring him to submit thenames 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 requirethat the testatrix and all the three instrumental and attesting witnesses sign at theend of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

"Every will, other than a holographic will, must be subscribed atthe end thereof by the testator himself or by the testator's namewritten by some other person in his presence, and by his expressdirection, and attested and subscribed by three or more crediblewitnesses in the presence of the testator and of one another.

"The testator or the person requested by him to write his name andthe 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 placedon the upper part of each page.

"The attestation shall state the number of pages used upon whichthe will is written, and the fact that the testator signed the will andevery page thereof, or caused some other person to write hisname, under his express direction, in the presence of theinstrumental witnesses, and that the latter witnessed and signedthe with and the pages thereof in the presence of the testator andof one another.

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

The respondent Judge interprets the above-quoted provision of law to requirethat, for a notarial will to be valid, it is not enough that only the testatrix signs at




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the "end" but all the three subscribing witnesses must also sign at the sameplace or at the end, in the presence of the testatrix and of one another becausethe attesting witnesses to a will attest not merely the will itself but also thesignature of the testator. It is not sufficient compliance to sign the page, wherethe 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 doesnot make it a condition precedent or a matter of absolute necessity for theextrinsic validity of the will that the signatures of the subscribing witnessesshould be specifically located at the end of the will after the signature of thetestatrix. He contends that it would be absurd that the legislature intended toplace 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 signaturesare 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 byanother person in his presence, and by his express direction, and attested andsubscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed. Attestationconsists in witnessing the testator's execution of the will in order to see and takenote mentally that those things are done which the statute requires for theexecution of a will and that the signature of the testator exists as a fact. On theother hand, subscription is the signing of the witnesses' names upon the samepaper for the purpose of identification of such paper as the will which wasexecuted by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

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

The signatures of the instrumental witnesses on the left margin of the first pageof the will attested not only to the genuineness of the signature of the testatrixbut also the due execution of the will as embodied in the attestation clause.

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

The law is to be liberally construed, "the underlying and fundamental objectivepermeating the provisions on the law on wills in this project consists in theliberalization of the manner of their execution with the end in view of giving thetestator more freedom in expressing his last wishes but with sufficientsafeguards and restrictions to prevent the commission of fraud and the exerciseof undue and improper pressure and influence upon the testator. This objective isin 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 thatwere it not for the defect in the place of signatures of the witnesses, he wouldhave found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in thepresent case when the instrumental witnesses signed at the left margin of thesole page which contains all the testamentary dispositions, especially so whenthe will was properly identified by subscribing witness Vicente Timkang to be thesame 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 clausefailed to state the number of pages used in writing the will. This would have beena fatal defect were it not for the fact that, in this case, it is discernible from theentire will that it is really and actually composed of only two pages duly signed bythe testatrix and her instrumental witnesses. As earlier stated, the first pagewhich contains the entirety of the testamentary dispositions is signed by thetestatrix at the end or at the bottom while the instrumental witnesses signed atthe left margin. The other page which is marked as "Pagina dos" comprises theattestation clause and the acknowledgment. The acknowledgment itself statesthat "This Last Will and Testament consists of two pages including this page."

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the followingobservations with respect to the purpose of the requirement that the attestationclause 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 attestationclause shall state the number of pages or sheets upon which thewill is written, which requirement has been held to be mandatoryas an effective safeguard against the possibility of interpolation or

omission of some of the pages of the will to the prejudice of theheirs to whom the property is intended to be bequeathed (In re willof Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405;Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain astatement of the number of sheets or passes composing the willand that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not byevidence aliunde, but by a consideration or examination of the willitself. But here the situation is different. While the attestation

clause does not state the number of sheets or pages upon whichthe will is written, however, the last part of the body of the willcontains a statement that it is composed of eight pages, whichcircumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where abroad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technicalconsiderations."

Icasiano v. Icasiano (11 SCRA 422, 429) has the following rulingwhich 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 thedefective page, but also by its bearing the coincident imprint of theseal of the notary public before whom the testament was ratified bytestatrix and all three witnesses. The law should not be so strictlyand literally interpreted as to penalize the testatrix on account of

the inadvertence of a single witness over whose conduct she hadno control, where the purpose of the law to guarantee the identityof the testament and its component pages is sufficiently attained,no intentional or deliberate deviation existed, and the evidence onrecord attest to the full observance of the statutory requisites.Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459,at 1479 (decision on reconsideration) 'witnesses may sabotage thewill by muddling or bungling it or the attestation clause.'"

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

SO ORDERED.

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

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.CELSO ICASIANO, petitioner-appellee, vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Appeal from an order of the Court of First Instance of Manila admitting to probatethe document and its duplicate, marked as Exhibits "A" and "A-1", as the true lastwill and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for theallowance and admission to probate of the original, Exhibit "A" as the alleged willof Josefa Villacorte, deceased, and for the appointment of petitioner CelsoIcasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and causednotice thereof to be published for three (3) successive weeks, previous to thetime appointed, in the newspaper "Manila chronicle", and also caused personalservice of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointedas a special administrator, to which proponent objected. Hence, on November 18,1958, the court issued an order appointing the Philippine Trust Company asspecial administrator.

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

On March 19, 1959, the petitioner proponent commenced the introduction of hisevidence; but on June 1, 1959, he filed a motion for the admission of an amendedand supplemental petition, alleging that the decedent left a will executed induplicate with all the legal requirements, and that he was, on that date, submitting




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the signed duplicate (Exhibit "A-1"), which he allegedly found only on or aboutMay 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez andEnrique Icasiano filed their joint opposition to the admission of the amended andsupplemental petition, but by order of July 20, 1959, the court admitted saidpetition, and on July 30, 1959, oppositor Natividad Icasiano filed her amendedopposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate toprobate. From this order, the oppositors appealed directly to this Court, theamount involved being over P200,000.00, on the ground that the same is contraryto law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte

died in the City of Manila on September 12, 1958; that on June 2, 1956, the lateJosefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, publishedbefore and attested by three instrumental witnesses, namely: attorneys Justo P.Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will wasacknowledged by the testatrix and by the said three instrumental witnesses onthe same date before attorney Jose Oyengco Ong, Notary Public in and for theCity of Manila; and that the will was actually prepared by attorney FerminSamson, who was also present during the execution and signing of thedecedent's last will and testament, together with former Governor Emilio Rustiaof Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumentalwitnesses to the execution of the decedent's last will and testament, attorneysTorres and Natividad were in the Philippines at the time of the hearing, and bothtestified as to the due execution and authenticity of the said will. So did theNotary Public before whom the will was acknowledged by the testatrix andattesting witnesses, and also attorneys Fermin Samson, who actually preparedthe document. The latter also testified upon cross examination that he preparedone original and two copies of Josefa Villacorte last will and testament at hishouse in Baliuag, Bulacan, but he brought only one original and one signed copyto Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrenderedsimultaneously with the filing of the petition and marked as Exhibit "A" consistsof five pages, and while signed at the end and in every page, it does not containthe signature of one of the attesting witnesses, Atty. Jose V. Natividad, on pagethree (3) thereof; but the duplicate copy attached to the amended andsupplemental petition and marked as Exhibit "A-1" is signed by the testatrix andher three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that theoriginal of the will and its duplicate were subscribed at the end and on the leftmargin of each and every page thereof by the testatrix herself and attested andsubscribed by the three mentioned witnesses in the testatrix's presence and inthat of one another as witnesses (except for the missing signature of attorneyNatividad on page three (3) of the original); that pages of the original andduplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by theaforesaid attesting witnesses; that the will is written in the language known toand spoken by the testatrix that the attestation clause is in a language alsoknown to and spoken by the witnesses; that the will was executed on one singleoccasion in duplicate copies; and that both the original and the duplicate copieswere duly acknowledged before Notary Public Jose Oyengco of Manila on thesame date June 2, 1956.

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

Oppositors-appellants in turn introduced expert testimony to the effect that thesignatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through

mistake and with undue influence and pressure because the testatrix wasdeceived into adopting as her last will and testament the wishes of those who willstand to benefit from the provisions of the will, as may be inferred from the factsand circumstances surrounding the execution of the will and the provisions anddispositions thereof, whereby proponents-appellees stand to profit fromproperties held by them as attorneys-in-fact of the deceased and not enumeratedor mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, onpenalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that thetestatrix signed both original and duplicate copies (Exhibits "A" and "A-1",respectively) of the will spontaneously, on the same in the presence of the threeattesting witnesses, the notary public who acknowledged the will; and Atty.

Samson, who actually prepared the documents; that the will and its duplicatewere executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson,together before they were actually signed; that the attestation clause is also in alanguage known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrixappearing in the duplicate original were not written by the same had which wrotethe signatures in the original will leaves us unconvinced, not merely because it isdirectly contradicted by expert Martin Ramos for the proponents, but principallybecause of the paucity of the standards used by him to support the conclusionthat the differences between the standard and questioned signatures are beyond

the writer's range of normal scriptural variation. The expert has, in fact, used asstandards only three other signatures of the testatrix besides those affixed to theoriginal of the testament (Exh. A); and we feel that with so few standards theexpert's opinion and the signatures in the duplicate could not be those of thetestatrix becomes extremely hazardous. This is particularly so since thecomparison charts Nos. 3 and 4 fail to show convincingly that the are radicaldifferences that would justify the charge of forgery, taking into account theadvanced age of the testatrix, the evident variability of her signatures, and theeffect of writing fatigue, the duplicate being signed right the original. These,factors were not discussed by the expert.

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

Nor do we find adequate evidence of fraud or undue influence. The fact that someheirs are more favored than others is proof of neither (see In re Butalid, 10 Phil.27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, thedecedent might as well die intestate. The testamentary dispositions that the heirsshould not inquire into other property and that they should respect thedistribution made in the will, under penalty of forfeiture of their shares in the freepart do not suffice to prove fraud or undue influence. They appear motivated bythe desire to prevent prolonged litigation which, as shown by ordinaryexperience, often results in a sizeable portion of the estate being diverted into thehands of non-heirs and speculators. Whether these clauses are valid or not is amatter to be litigated on another occassion. It is also well to note that, asremarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraudand undue influence are mutually repugnant and exclude each other; their joiningas grounds for opposing probate shows absence of definite evidence against thevalidity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affixhis signature to one page of a testament, due to the simultaneous lifting of twopages in the course of signing, is not per se sufficient to justify denial of probate.Impossibility of substitution of this page is assured not only the fact that thetestatrix and two other witnesses did sign the defective page, but also by itsbearing the coincident imprint of the seal of the notary public before whom thetestament was ratified by testatrix and all three witnesses. The law should not beso strictly and literally interpreted as to penalize the testatrix on account of theinadvertence of a single witness over whose conduct she had no control, wherethe purpose of the law to guarantee the identity of the testament and itscomponent pages is sufficiently attained, no intentional or deliberate deviationexisted, and the evidence on record attests to the full observance of the statutoryrequisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at1479 (decision on reconsideration) "witnesses may sabotage the will by muddlingor bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through

pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of theattestation clause and the acknowledgment before the Notary Public likewiseevidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literalapplication of the statutory requirements, where the purposes of the law areotherwise satisfied. Thus, despite the literal tenor of the law, this Court has heldthat a testament, with the only page signed at its foot by testator and witnesses,but not in the left margin, could nevertheless be probated (Abangan vs. Abangan,41 Phil. 476); and that despite the requirement for the correlative lettering of thepages of a will, the failure to make the first page either by letters or numbers isnot a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify theCourt's policy to require satisfaction of the legal requirements in order to guard




13

against fraud and bid faith but without undue or unnecessary curtailment of thetestamentary privilege.

The appellants also argue that since the original of the will is in existence andavailable, the duplicate (Exh. A-1) is not entitled to probate. Since they opposedprobate of original because it lacked one signature in its third page, it is easilydiscerned that oppositors-appellants run here into a dilemma; if the original isdefective and invalid, then in law there is no other will but the duly signed carbonduplicate (Exh. A-1), and the same is probatable. If the original is valid and can beprobated, then the objection to the signed duplicate need not be considered,being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, servesto prove that the omission of one signature in the third page of the original

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

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costsagainst appellants.

G.R. No. 122880, April 12, 2006

FELIX AZUELA, Petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLOsubstituted by ERNESTO G. CASTILLO, Respondents.

The core of this petition is a highly defective notarial will, purportedly executedby 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, theCourt is provided the opportunity to assert a few important doctrinal rules in theexecution of notarial wills, all self-evident in view of Articles 805 and 806 of theCivil Code.

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

There is a distinct and consequential reason the Civil Code provides acomprehensive 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 codalprovisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with theRegional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuelasought to admit to probate the notarial will of Eugenia E. Igsolo, which wasnotarized 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 infull:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoriaay 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 akinng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa akingpamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabangpanahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 atnakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ngkarapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 napag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ngkarapatan 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 walangpasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad nghuling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagakng piyansiya.

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

(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, naipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang HulingHabilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sailalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, saharap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda sa harapng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ngnasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatanito.

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, 1981

LAMBERTO C. LEAÑOaddress: Avenue 2, Blcok 7,Lot 61, San Gabriel, G.MA., Cavite Res.Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERAaddress: City Court Compound,City of Manila Res. Cert. No. A574829Issued at Manila on March 2, 1981.

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

(Sgd.)PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKOPage No. 86 ; Until Dec. 31, 1981Book No. 43 ; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-handmargin 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 thedecedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was allegedto have resided abroad. Petitioner prayed that the will be allowed, and that letterstestamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), whorepresented herself as the attorney-in-fact of "the 12 legitimate heirs" of thedecedent.2 Geralda Castillo claimed that the will is a forgery, and that the truepurpose of its emergence was so it could be utilized as a defense in several courtcases filed by oppositor against petitioner, particularly for forcible entry andusurpation of real property, all centering on petitioners right to occupy theproperties of the decedent.3 It also asserted that contrary to the representationsof petitioner, the decedent was actually survived by 12 legitimate heirs, namely

her grandchildren, who were then residing abroad. Per records, it wassubsequently alleged that decedent was the widow of Bonifacio Igsolo, who diedin 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, whopredeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed andattested to in accordance with law. She pointed out that decedents signature didnot appear on the second page of the will, and the will was not properlyacknowledged. These twin arguments are among the central matters to thispetition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August1992.6 The RTC favorably took into account the testimony of the three (3)witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. TheRTC also called to fore "the modern tendency in respect to the formalities in the




14

execution of a will x x x with the end in view of giving the testator more freedomin expressing his last wishes;"7 and from this perspective, rebutted oppositorsarguments that the will was not properly executed and attested to in accordancewith law.

After a careful examination of the will and consideration of the testimonies of thesubscribing and attesting witnesses, and having in mind the modern tendency inrespect to the formalities in the execution of a will, i.e., the liberalization of theinterpretation of the law on the formal requirements of a will with the end in viewof giving the testator more freedom in expressing his last wishes, this Court ispersuaded to rule that the will in question is authentic and had been executed bythe 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, naipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang HulingHabilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmanasa 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 saharap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sailalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ngkasulatan ito."

The aforequoted declaration comprises the attestation clause and theacknowledgement and is considered by this Court as a substantial compliancewith 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 thesigning by the subscribing witnesses on the left margin of the second page of thewill containing the attestation clause and acknowledgment, instead of at thebottom thereof, substantially satisfies the purpose of identification andattestation of the will.

With regard to the oppositors argument that the will was not numberedcorrelatively in letters placed on upper part of each page and that the attestationdid not state the number of pages thereof, it is worthy to note that the will iscomposed of only two pages. The first page contains the entire text of thetestamentary dispositions, and the second page contains the last portion of theattestation clause and acknowledgement. Such being so, the defects are not of aserious nature as to invalidate the will. For the same reason, the failure of thetestatrix to affix her signature on the left margin of the second page, whichcontains only the last portion of the attestation clause and acknowledgment isnot 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 areconvincing enough to establish the genuineness of the signature of the testatrixand the due execution of the will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who hadsubstituted his since deceased mother-in-law, Geralda Castillo. In a Decisiondated 17 August 1995, the Court of Appeals reversed the trial court and orderedthe dismissal of the petition for probate.9 The Court of Appeals noted that theattestation clause failed to state the number of pages used in the will, thusrendering the will void and undeserving of probate.10

Hence, the present petition.

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

The solution to this case calls for the application of Articles 805 and 806 of theCivil Code, which we replicate in full.

Art. 805. Every will, other than a holographic will, must be subscribed at the endthereof 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 andsubscribed 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 theinstrumental witnesses of the will, shall also sign, as aforesaid, each and everypage thereof, except the last, on the left margin, and all the pages shall benumbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will iswritten, 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 signedthe will and all the pages thereof in the presence of the testator and of oneanother.

If the attestation clause is in a language not known to the witnesses, it shall beinterpreted 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 thewill, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of theattestation clause to state the number of pages of the will. But an examination of

the will itself reveals several more deficiencies.As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with thisrequisite, a space having been allotted for the insertion of the number of pages inthe attestation clause. Yet the blank was never filled in; hence, the requisite wasleft uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing inthe process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In UyCoque, the Court noted that among the defects of the will in question was thefailure of the attestation clause to state the number of pages contained in thewill.15 In ruling that the will could not be admitted to probate, the Court made thefollowing consideration which remains highly relevant to this day: "The purposeof requiring the number of sheets to be stated in the attestation clause isobvious; the document might easily be so prepared that the removal of a sheetwould completely change the testamentary dispositions of the will and in theabsence 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 thefollowing sheets or pages. If, on the other hand, the total number of sheets isstated in the attestation clause the falsification of the document will involve theinserting of new pages and the forging of the signatures of the testator andwitnesses in the margin, a matter attended with much greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of whichfailed to state the number of sheets or pages used. This consideration alone wassufficient for the Court to declare "unanim[ity] upon the point that the defectpointed out in the attesting clause is fatal."17 It was further observed that "itcannot be denied that the x x x requirement affords additional security againstthe danger that the will may be tampered with; and as the Legislature has seen fitto prescribe this requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino 19 and Taboada v.Hon. Rosal,20 wherein the Court allowed probate to the wills concerned thereindespite 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 whichwe adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that theattestation does not state the number of pages used upon which the will iswritten. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singsonversus 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 valideven if the attestation does not contain the number of pages used upon which theWill is written. However, the Decisions of the Supreme Court are not applicable inthe aforementioned appeal at bench. This is so because, in the case of "ManuelSingson versus Emilia Florentino, et al., supra," although the attestation in thesubject Will did not state the number of pages used in the will, however, the samewas found in the last part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended byAct 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 heldto be mandatory as an effective safeguard against the possibility of interpolationor omission of some of the pages of the will to the prejudice of the heirs to whomthe property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; UyCoque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quintovs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratiodecidendi of these cases seems to be that the attestation clause must contain astatement of the number of sheets or pages composing the will and that if this ismissing or is omitted, it will have the effect of invalidating the will if the deficiencycannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While theattestation clause does not state the number of sheets or pages upon which the




15

will is written, however, the last part of the body of the will contains a statementthat it is composed of eight pages, which circumstance in our opinion takes thiscase 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 willof the testator from being defeated by purely technical considerations." (page165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarialacknowledgement in the Will states the number of pages used in the:

"x x x

We have examined the will in question and noticed that the attestation clause

failed to state the number of pages used in writing the will. This would have beena fatal defect were it not for the fact that, in this case, it is discernible from theentire will that it is really and actually composed of only two pages duly signed bythe testatrix and her instrumental witnesses. As earlier stated, the first pagewhich contains the entirety of the testamentary dispositions is signed by thetestatrix at the end or at the bottom while the instrumental witnesses signed atthe left margin. The other page which is marked as "Pagina dos" comprises theattestation clause and the acknowledgment. The acknowledgment itself statesthat "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 notstated in any part of the Will. The will does not even contain any notarialacknowledgment wherein the number of pages of the will should be stated. 21

Both Uy Coque and Andrada were decided prior to the enactment of the CivilCode in 1950, at a time when the statutory provision governing the formalrequirement of wills was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos,considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in1950 did put in force a rule of interpretation of the requirements of wills, at leastinsofar as the attestation clause is concerned, that may vary from the philosophythat governed these two cases. Article 809 of the Civil Code states: "In theabsence of bad faith, forgery, or fraud, or undue and improper pressure andinfluence, defects and imperfections in the form of attestation or in the languageused therein shall not render the will invalid if it is proved that the will was in factexecuted 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, whichstated that "the underlying and fundamental objective permeating the provisionson the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in[expressing] his last wishes. This objective is in accord with the [modern

tendency] in respect to the formalities in the execution of wills." 24 However,petitioner conveniently omits the qualification offered by the Code Commission inthe 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 thetestator."25

Caneda v. Court of Appeals26 features an extensive discussion made by JusticeRegalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestationclause in wills.27 Uy Coque and Andrada are cited therein, along with severalother cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal constructionthrough the "substantial compliance rule" under Article 809. A cautionary notewas struck though by Justice J.B.L. Reyes as to how Article 809 should beapplied:

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 consecutivelynumbered; whether the signatures appear in each and every page; whether thesubscribing witnesses are three or the will was notarized. All these are facts thatthe will itself can reveal, and defects or even omissions concerning them in theattestation clause can be safely disregarded. But the total number of pages, andwhether all persons required to sign did so in the presence of each other mustsubstantially appear in the attestation clause, being the only check againstperjury in the probate proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in itsassailed decision, considering that the failure to state the number of pages of thewill in the attestation clause is one of the defects which cannot be simplydisregarded. In Caneda itself, the Court refused to allow the probate of a willwhose attestation clause failed to state that the witnesses subscribed their

respective signatures to the will in the presence of the testator and of eachother,30 the other omission cited by Justice J.B.L. Reyes which to his estimationcannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is thatomission which can be supplied by an examination of the will itself, without theneed of resorting to extrinsic evidence, will not be fatal and, correspondingly,would not obstruct the allowance to probate of the will being assailed. However,those omissions which cannot be supplied except by evidence aliunde wouldresult in the invalidation of the attestation clause and ultimately, of the willitself."31 Thus, a failure by the attestation clause to state that the testator signedevery 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 witnessessigned in one anothers presence should be considered a fatal flaw since theattestation is the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which thewill was written remains a fatal flaw, despite Article 809. The purpose of the law inrequiring the clause to state the number of pages on which the will is written is tosafeguard against possible interpolation or omission of one or some of its pagesand to prevent any increase or decrease in the pages.33 The failure to state thenumber of pages equates with the absence of an averment on the part of theinstrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda,there is substantial compliance with this requirement if the will states elsewherein it how many pages it is comprised of, as was the situation in Singson andTaboada. However, in this case, there could have been no substantial compliancewith the requirements under Article 805 since there is no statement in theattestation 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 theformal requirements as enumerated under Article 805. Whatever the inclinationsof the members of the Code Commission in incorporating Article 805, the factremains that they saw fit to prescribe substantially the same formal requisites asenumerated in Section 618 of the Code of Civil Procedure, convinced that theseremained effective safeguards against the forgery or intercalation of notarialwills.34 Compliance with these requirements, however picayune in impression,affords the public a high degree of comfort that the testator himself or herself haddecided to convey property post mortem in the manner established in the will. 35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the 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, anexamination of the will itself reveals a couple of even more critical defects thatshould 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-handmargin of the will, they do not appear at the bottom of the attestation clausewhich after all consists of their averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of thethree witnesses to the will do not appear at the bottom of the attestation clause,although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirementhad been substantially complied with, a majority of six (6), speaking throughChief 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 notappear at the bottom of the attestation clause, although the page containing thesame is signed by the witnesses on the left-hand margin.

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

The petitioner and appellee contends that signatures of the three witnesses onthe left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signaturesare in compliance with the legal mandate that the will be signed on the left-handmargin of all its pages. If an attestation clause not signed by the three witnessesat the bottom thereof, be admitted as sufficient, it would be easy to add suchclause to a will on a subsequent occasion and in the absence of the testator andany or all of the witnesses.39




16

The Court today reiterates the continued efficacy of Cagro. Article 805 particularlysegregates the requirement that the instrumental witnesses sign each page of thewill, from the requisite that the will be "attested and subscribed by [theinstrumental 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 theyare signing forms part of the will. On the other hand, the signatures to theattestation clause establish that the witnesses are referring to the statementscontained in the attestation clause itself. Indeed, the attestation clause isseparate and apart from the disposition of the will. An unsigned attestationclause results in an unattested will. Even if the instrumental witnesses signed the

left-hand margin of the page containing the unsigned attestation clause, suchsignatures cannot demonstrate these witnesses undertakings in the clause, sincethe signatures that do appear on the page were directed towards a whollydifferent avowal.

The Court may be more charitably disposed had the witnesses in this case signedthe attestation clause itself, but not the left-hand margin of the page containingsuch clause. Without diminishing the value of the instrumental witnessessignatures on each and every page, the fact must be noted that it is theattestation clause which contains the utterances reduced into writing of thetestamentary witnesses themselves. It is the witnesses, and not the testator, whoare required under Article 805 to state the number of pages used upon which thewill is written; the fact that the testator had signed the will and every pagethereof; and that they witnessed and signed the will and all the pages thereof inthe presence of the testator and of one another. The only proof in the will that thewitnesses have stated these elemental facts would be their signatures on theattestation clause.

Thus, the subject will cannot be considered to have been validly attested to bythe 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 petitionshould also hinge. The requirement under Article 806 that "every will must beacknowledged before a notary public by the testator and the witnesses" has alsonot been complied with. The importance of this requirement is highlighted by thefact that it had been segregated from the other requirements under Article 805and 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 compliancewith Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito saLungsod ng Maynila."40 By no manner of contemplation can those words beconstrued as an acknowledgment. An acknowledgment is the act of one who hasexecuted a deed in going before some competent officer or court and declaring itto be his act or deed.41 It involves an extra step undertaken whereby the signor

actually declares to the notary that the executor of a document has attested to thenotary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does nothew to the usual language thereof. A jurat is that part of an affidavit where thenotary certifies that before him/her, the document was subscribed and sworn toby the executor.42 Ordinarily, the language of the jurat should avow that thedocument 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 wouldinvolve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the willwould nonetheless remain invalid, as the express requirement of Article 806 isthat the will be "acknowledged", and not merely subscribed and sworn to. Thewill does not present any textual proof, much less one under oath, that thedecedent 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 freeconsent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses todeclare before an officer of the law that they had executed and subscribed to thewill as their own free act or deed. Such declaration is under oath and under painof perjury, thus allowing for the criminal prosecution of persons who participatein 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/shehad designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it isunder 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 andsworn to before a notary public.

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

disposition of this case. The provision requires that the testator and theinstrumental 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 lettersplaced on the upper part of each page. In this case, the decedent, unlike thewitnesses, failed to sign both pages of the will on the left margin, her onlysignature appearing at the so-called "logical end"44 of the will on its first page.Also, the will itself is not numbered correlatively in letters on each page, butinstead numbered with Arabic numerals. There is a line of thought that hasdisabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to denyprobate to a will. Yet even as these omissions are not decisive to the adjudicationof this case, they need not be dwelt on, though indicative as they may be of ageneral 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 makesthe probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

[G.R. No. 157451, December 16, 2005]LETICIA VALMONTE ORTEGA, PETITIONER, VS. JOSEFINA C. VALMONTE,RESPONDENT.

The law favors the probate of a will. Upon those who oppose it rests the burdenof showing why it should not be allowed. In the present case, petitioner has failedto discharge this burden satisfactorily. For this reason, the Court cannot attributeany reversible error on the part of the appellate tribunal that allowed the probateof the will.

The Case

Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court,seeking to reverse and set aside the December 12, 2002 Decision [2] and the March7, 2003 Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 44296. Theassailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from isREVERSED and SET ASIDE. In its place judgment is rendered approving andallowing probate to the said last will and testament of Placido Valmonte andordering the issuance of letters testamentary to the petitioner Josefina Valmonte.Let this case be remanded to the court a quo for further and concomitantproceedings." [4]

The assailed Resolution denied petitioner's Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time inthe United States until he finally reached retirement. In 1980, Placido finally camehome to stay in the Philippines, and he lived in the house and lot located at #9200Catmon St., San Antonio Village, Makati, which he owned in common with hissister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who wasthen 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. onFebruary 5, 1982. But in a little more than two years of wedded bliss, Placido diedon October 8, 1984 of a cause written down as COR PULMONALE."Placido executed a notarial last will and testament written in English andconsisting of two (2) pages, and dated June 15, 1983 but acknowledged only onAugust 9, 1983. The first page contains the entire testamentary dispositions and a

part of the attestation clause, and was signed at the end or bottom of that page bythe testator and on the left hand margin by the three instrumental witnesses. Thesecond page contains the continuation of the attestation clause and theacknowledgment, and was signed by the witnesses at the end of the attestationclause and again on the left hand margin. It provides in the body that:

"LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THELORD AMEN:"I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte,and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age andbeing of sound and disposing mind and memory, do hereby declare this to be mylast will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under theauspices of the Catholic Church in accordance with the rites and said




17

Church and that a suitable monument to be erected and provided myby executrix (wife) to perpetuate my memory in the minds of myfamily and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C.VALMONTE, one half (1/2) portion of the follow-described properties,which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC,(GLRO), situated in Makati, Metro Manila, described andcovered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners withmy deceased sister (Ciriaca Valmonte), having share andshare alike;

b. 2-storey building standing on the above-describedproperty, made of strong and mixed materials used as myresidence and my wife and located at No. 9200 CatmonStreet, Makati, Metro Manila also covered by TaxDeclaration No. A-025-00482, Makati, Metro-Manila, jointlyin the name of my deceased sister, Ciriaca Valmonte andmyself as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties,including my savings account bank book in USA which is in thepossession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of

my last will and testament, and it is my will that said executrix beexempt from filing a bond;IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines."

"The allowance to probate of this will was opposed byLeticia on the grounds that:

1. Petitioner failed to allege all assets of the testator,especially those found in the USA;

2. Petitioner failed to state the names, ages, and residencesof the heirs of the testator; or to give them proper noticepursuant to law;

3. Will was not executed and attested as required by law andlegal solemnities and formalities were not complied with;

4. Testator was mentally incapable to make a will at the timeof the alleged execution he being in an advance sate of

senility;5. Will was executed under duress, or the influence of fear or

threats;

6. Will was procured by undue and improper influence andpressure on the part of the petitioner and/or her agentsand/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, andhe did not intend that the instrument should be his will atthe time of affixing his signature thereto;"

and she also opposed the appointment as Executrix of Josefina alleging her wantof understanding and integrity."At the hearing, the petitioner Josefina testified and called as witnesses thenotary public Atty. Floro Sarmiento who prepared and notarized the will, and theinstrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and JosieCollado. For the opposition, the oppositor Leticia and her daughter Mary JaneOrtega testified."According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila everymonth to get his $366.00 monthly pension and stayed at the said Makatiresidence. There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when thenotarial will was made. The will was witnessed by the spouses Eugenio andFeliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefinasaid she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attache case after his death. Itwas only then that she learned that the testator bequeathed to her his propertiesand she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or lessP100,000.00. Josefina declared too that the testator never suffered mental

infirmity because despite his old age he went alone to the market which is two tothree kilometers from their home cooked and cleaned the kitchen and sometimesif she could not accompany him, even traveled to Manila alone to claim hismonthly pension. Josefina also asserts that her husband was in good health andthat he was hospitalized only because of a cold but which eventually resulted inhis death."Notary Public Floro Sarmiento, the notary public who notarized the testator'swill, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office andrequested him to prepare his last will and testament. After the testator instructedhim on the terms and dispositions he wanted on the will, the notary public told

them to come back on June 15, 1983 to give him time to prepare it. After he hadprepared the will the notary public kept it safely hidden and locked in his drawer.The testator and his witnesses returned on the appointed date but the notarypublic was out of town so they were instructed by his wife to come back onAugust 9, 1983, and which they did. Before the testator and his witnesses signedthe prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewiseexplained that though it appears that the will was signed by the testator and hiswitnesses on June 15, 1983, the day when it should have been executed had henot gone out of town, the formal execution was actually on August 9, 1983. Hereasoned that he no longer changed the typewritten date of June 15, 1983because he did not like the document to appear dirty. The notary public alsotestified that to his observation the testator was physically and mentally capableat the time he affixed his signature on the will."The attesting witnesses to the will corroborated the testimony of the notarypublic, and testified that the testator went alone to the house of spouses Eugenioand Feliza Gomez at GSIS Village, Quezon City and requested them to accompany

him to the house of Atty. Floro Sarmiento purposely for his intended will; thatafter giving his instructions to Atty. Floro Sarmiento, they were told to return onJune 15, 1983; that they returned on June 15, 1983 for the execution of the will butwere asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator executed the will in question in their presencewhile he was of sound and disposing mind and that he was strong and in goodhealth; that the contents of the will was explained by the notary public in theIlocano and Tagalog dialect and that all of them as witnesses attested and signedthe will in the presence of the testator and of each other. And that during theexecution, the testator's wife, Josefina was not with them."The oppositor Leticia declared that Josefina should not inherit alone becauseaside from her there are other children from the siblings of Placido who are justas entitled to inherit from him. She attacked the mental capacity of the testator,declaring that at the time of the execution of the notarial will the testator wasalready 83 years old and was no longer of sound mind. She knew whereof shespoke because in 1983 Placido lived in the Makati residence and asked Leticia's

family to live with him and they took care of him. During that time, the testator'sphysical and mental condition showed deterioration, aberrations and senility.This was corroborated by her daughter Mary Jane Ortega for whom Placido tooka fancy and wanted to marry."Sifting through the evidence, the court a quo held that [t]he evidence adduced,reduces the opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and f ormalities in the execution and attestation of the will ; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility

"It then found these grounds extant and proven , and accordingly disallowed pro bate ."[5]

Ruling of the Court of Appeals

Reversing the trial court , the appellate court admitted the will of Placido Valmonte to pro bate . The CA upheld the credi bility of the notary pu blic and the su bscri bing witnesses

who

had

ac

knowledged

the

due

execution

of

the

will

. Moreover

,it

held

that the testator had testamentary capacity at the time of the execution of the will .It added that his "sexual exhi bitionism and unhygienic , crude and impolite ways "[6] did not ma ke him a person of unsound mind .Hence , this Petition .[7]

Issues

Petitioner raises the following issues for our consideration :

"I.

Whether or not the findings of the pro bate court are entitled to great respect .

"II.




18

Whether or not the signature of Placido Valmonte in the subject will was procuredby fraud or trickery, and that Placido Valmonte never intended that the instrumentshould be his last will and testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time heallegedly executed the subject will."[8] In short, petitioner assails the CA's allowance of the probate of the will of PlacidoValmonte.

This Court's Ruling

The Petition has no merit.

Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an exception,however, the evidence presented during the trial may be examined and the factualmatters resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those of the trial court. [9] The fact that public policy favors the probate of a will does not necessarily meanthat every will presented for probate should be allowed. The law lays down theprocedures and requisites that must be satisfied for the probate of a will. [10] Verily, Article 839 of the Civil Code states the instances when a will may bedisallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:(1) If the formalities required by law have not been complied with;(2) If the testator was insane, or otherwise mentally incapable of making a will, at

the time of its execution;(3) If it was executed through force or under duress, or the influence of fear, or threats;(4) If it was procured by undue and improper pressure and influence, on the partof the beneficiary or of some other person;(5) If the signature of the testator was procured by fraud;(6) If the testator acted by mistake or did not intend that the instrument he signedshould be his will at the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmonte's will byimputing fraud in its execution and challenging the testator's state of mind at thetime.Existence of Fraud in theExecution of a WillPetitioner does not dispute the due observance of the formalities in the executionof the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is thetestator's wife and sole beneficiary, conspired with the notary public and thethree attesting witnesses in deceiving Placido to sign it. Deception is allegedlyreflected in the varying dates of the execution and the attestation of the will.Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage with a man who [was]thrice her age x x x and who happened to be [a] Fil-American pensionado," [11] thus casting doubt on the intention of respondent in seeking the probate of thewill. Moreover, it supposedly "defies human reason, logic and commonexperience"[12] for an old man with a severe psychological condition to havewillingly signed a last will and testament.We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of such character thatthe testator is misled or deceived as to the nature or contents of the documentwhich he executes, or it may relate to some extrinsic fact, in consequence of thedeception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made." [13] We stress that the party challenging the will bears the burden of proving the

existence of fraud at the time of its execution.[14] The burden to show otherwiseshifts to the proponent of the will only upon a showing of credible evidence of fraud.[15] Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented.It is a settled doctrine that the omission of some relatives does not affect the dueexecution of a will.[16] That the testator was tricked into signing it was notsufficiently established by the fact that he had instituted his wife, who was morethan fifty years his junior, as the sole beneficiary; and disregarded petitioner andher family, who were the ones who had taken "the cudgels of taking care of [thetestator] in his twilight years."[17] Moreover, as correctly ruled by the appellate court, the conflict between the datesappearing on the will does not invalidate the document, "because the law doesnot even require that a [notarial] will x x x be executed and acknowledged on the

same occasion."[18] More important, the will must be subscribed by the testator,as well as by three or more credible witnesses who must also attest to it in thepresence of the testator and of one another.[19] Furthermore, the testator and thewitnesses must acknowledge the will before a notary public.[20] In any event, weagree with the CA that "the variance in the dates of the will as to its supposedexecution and attestation was satisfactorily and persuasively explained by thenotary public and the instrumental witnesses." [21] The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- arereproduced respectively as follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when thetestator and his witnesses were supposed to be in your office?

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?

A They did as of agreement but unfortunately, I was out of town.

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when thedocument was acknowledged?

A Yes sir.

Q What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of exhibit C?

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on thebody of the document as well as the attestation clause?

A Because I do not like anymore to make some alterations so I put it in my ownhandwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp.8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983,whereas in the acknowledgement it is dated August 9, 1983, will you look atthis document and tell us this discrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the twowitnesses; that was first week of June and Atty. Sarmiento told us to returnon the 15th of June but when we returned, Atty. Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again goback?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who wereyour companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

A The reason why we went there three times is that, the first week of June wasout first time. We went there to talk to Atty. Sarmiento and Placido Valmonteabout the last will and testament. After that what they have talked what will be

placed in the testament, what Atty. Sarmiento said was that he will go backon the 15th of June. When we returned on June 15, Atty. Sarmiento was notthere so we were not able to sign it, the will. That is why, for the third time wewent there on August 9 and that was the time we affixed our signature. (tsn,October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, whattranspired?

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?




19

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"[22]

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in thecommission of a fraud. There was no showing that the witnesses of theproponent stood to receive any benefit from the allowance of the will. Thetestimonies of the three subscribing witnesses and the notary are credibleevidence of its due execution. [23] Their testimony favoring it and the finding that itwas executed in accordance with the formalities required by law should beaffirmed, absent any showing of ill motives. [24] Capacity to Make a WillIn determining the capacity of the testator to make a will, the Civil Code gives thefollowing guidelines:

"Article 798. In order to make a will it is essential that the testator be of soundmind at the time of its execution."Article 799. To be of sound mind, it is not necessary that the testator be in fullpossession of all his reasoning faculties, or that his mind be wholly unbroken,unimpaired, or shattered by disease, injury or other cause."It shall be sufficient if the testator was able at the time of making the will to knowthe nature of the estate to be disposed of, the proper objects of his bounty, andthe character of the testamentary act."Article 800. The law presumes that every person is of sound mind, in the

absence of proof to the contrary."The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; butif the testator, one month, or less, before making his will was publicly known tobe insane, the person who maintains the validity of the will must prove that thetestator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability toknow to be considered of sound mind are as follows: (1) the nature of the estateto be disposed of, (2) the proper objects of the testator's bounty, and (3) thecharacter of the testamentary act. Applying this test to the present case, we findthat the appellate court was correct in holding that Placido had testamentarycapacity at the time of the execution of his will.It must be noted that despite his advanced age, he was still able to identifyaccurately the kinds of property he owned, the extent of his shares in them andeven their locations. As regards the proper objects of his bounty, it was sufficientthat he identified his wife as sole beneficiary. As we have stated earlier, the

omission of some relatives from the will did not affect its formal validity. Therebeing no showing of fraud in its execution, intent in its disposition becomesirrelevant.Worth reiterating in determining soundness of mind is Alsua-Betts v. CA, [25] whichheld thus:

"Between the highest degree of soundness of mind and memory whichunquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberlessdegrees of mental capacity or incapacity and while on one hand it has been heldthat mere weakness of mind, or partial imbecility from disease of body, or fromage, will not render a person incapable of making a will; a weak or feeblemindedperson may make a valid will, provided he has understanding and memorysufficient to enable him to know what he is about to do and how or to whom he isdisposing of his property. To constitute a sound and disposing mind, it is notnecessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarilyrequire that a person shall actually be insane or of unsound mind." [26]

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolutionof the Court of Appeals are AFFIRMED. Costs against petitioner.[G.R. No. 174144, April 17, 2007]BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS,RESPONDENT.The Scriptures tell the story of the brothers Jacob and Esau[1], siblings whofought bitterly over the inheritance of their father Isaac's estate. Jurisprudence isalso replete with cases involving acrimonious conflicts between brothers andsisters over successional rights. This case is no exception.On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner BellaA. Guerrero and respondent Resurreccion A. Bihis, died at the MetropolitanHospital in Tondo, Manila.On May 24, 1994, petitioner filed a petition for the probate of the last will and

testament of the decedent in Branch 95[2] of the Regional Trial Court of QuezonCity where the case was docketed as Sp. Proc. No. Q-94-20661.The petition alleged the following: petitioner was named as executrix in thedecedent's will and she was legally qualified to act as such; the decedent was acitizen of the Philippines at the time of her death; at the time of the execution of the will, the testatrix was 79 years old, of sound and disposing mind, not actingunder duress, fraud or undue influence and was capacitated to dispose of her estate by will.Respondent opposed her elder sister's petition on the following grounds: the willwas not executed and attested as required by law; its attestation clause andacknowledgment did not comply with the requirements of the law; the signature

of the testatrix was procured by fraud and petitioner and her children procuredthe will through undue and improper pressure and influence.In an order dated November 9, 1994, the trial court appointed petitioner as specialadministratrix of the decedent's estate. Respondent opposed petitioner'sappointment but subsequently withdrew her opposition. Petitioner took her oathas temporary special administratrix and letters of special administration wereissued to her.On January 17, 2000, after petitioner presented her evidence, respondent filed ademurrer thereto alleging that petitioner's evidence failed to establish that thedecedent's will complied with Articles 804 and 805 of the Civil Code.In a resolution dated July 6, 2001, the trial court denied the probate of the willruling that Article 806 of the Civil Code was not complied with because the willwas "acknowledged" by the testatrix and the witnesses at the testatrix's,residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directowho was a commissioned notary public for and in Caloocan City. The dispositiveportion of the resolution read:

WHEREFORE, in view of the foregoing, the Court finds, and so declares that itcannot admit the last will and testament of the late Felisa Tamio de Buenaventurato probate for the reasons hereinabove discussed and also in accordance withArticle 839 [of the Civil Code] which provides that if the formalities required bylaw have not been complied with, the will shall be disallowed. In view thereof, theCourt shall henceforth proceed with intestate succession in regard to the estateof the deceased Felisa Tamio de Buenaventura in accordance with Article 960 of the [Civil Code], to wit: "Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequentlylost its validity, xxx."SO ORDERED.[3]

Petitioner elevated the case to the Court of Appeals but the appellate courtdismissed the appeal and affirmed the resolution of the trial court. [4] Thus, this petition.[5] Petitioner admits that the will was acknowledged by the testatrix and thewitnesses at the testatrix's residence in Quezon City before Atty. Directo and that,at that time, Atty. Directo was a commissioned notary public for and in Caloocan

City. She, however, asserts that the fact that the notary public was acting outsidehis territorial jurisdiction did not affect the validity of the notarial will.Did the will "acknowledged" by the testatrix and the instrumental witnessesbefore a notary public acting outside the place of his commission satisfy therequirement under Article 806 of the Civil Code? It did not.Article 806 of the Civil Code provides:

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 thewill, or file another with the office of the Clerk of Court.

One of the formalities required by law in connection with the execution of anotarial will is that it must be acknowledged before a notary public by the testator and the witnesses.[6] This formal requirement is one of the indispensablerequisites for the validity of a will. [7] In other words, a notarial will that is notacknowledged before a notary public by the testator and the instrumentalwitnesses is void and cannot be accepted for probate.An acknowledgment is the act of one who has executed a deed in going before

some competent officer and declaring it to be his act or deed. [8] In the case of anotarial will, that competent officer is the notary public.The acknowledgment of a notarial will coerces the testator and the instrumentalwitnesses to declare before an officer of the law, the notary public, that theyexecuted and subscribed to the will as their own free act or deed.[9] Suchdeclaration is under oath and under pain of perjury, thus paving the way for thecriminal prosecution of persons who participate in the execution of spuriouswills, or those executed without the free consent of the testator. [10] It alsoprovides a further degree of assurance that the testator is of a certain mindset inmaking the testamentary dispositions to the persons instituted as heirs or designated as devisees or legatees in the will.[11] Acknowledgment can only be made before a competent officer, that is, a lawyer




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duly commissioned as a notary public.In this connection, the relevant provisions of the Notarial Law provide:

SECTION 237. Form of commission for notary public. -The appointment of anotary public shall be in writing, signed by the judge, and substantially in thefollowing form:

GOVERNMENT OF THEREPUBLIC OF THE PHILIPPINES

PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________ in saidprovince, was on the ___ day of __________, anno Domini nineteen hundred and

_______, appointed by me a notary public, within and for the said province, for the term ending on the first day of January, anno Domini nineteen hundred and _____. _________________ Judge of the Court of irst Instance[12] of saidProvince

SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in aprovince shall be co-extensive with the province. The jurisdiction of a notarypublic in the City of Manila shall be co-extensive with said city. No notary shallpossess authority to do any notarial act beyond the limits of his jurisdiction.(emphases supplied)

A notary public's commission is the grant of authority in his favor to performnotarial acts.[13] It is issued "within and for" a particular territorial jurisdiction andthe notary public's authority is co-extensive with it. In other words, a notarypublic is authorized to perform notarial acts, including the taking of

acknowledgments, within that territorial jurisdiction only. Outside the place of hiscommission, he is bereft of power to perform any notarial act; he is not a notarypublic. Any notarial act outside the limits of his jurisdiction has no force andeffect. As this Court categorically pronounced in Tecson v. Tecson: [14]

An acknowledgment taken outside the territorial limits of the officer's jurisdictionis void as if the person taking it ware wholly without official character. (emphasissupplied)

Since Atty. Directo was not a commissioned notary public for and in Quezon City,he lacked the authority to take the acknowledgment of the testatrix and theinstrumental witnesses. In the same vein, the testatrix and her witnesses couldnot have validly acknowledged the will before him. Thus, Felisa Tamio deBuenaventura's last will and testament was, in effect, not acknowledged asrequired by law.Moreover, Article 5 of the Civil Code provides:ART. 5. Acts executed against the provisions of mandatory or prohibitory lawsshall be void, except when the law itself authorizes their validity.

The violation of a mandatory or a prohibitory statute renders the act illegal andvoid unless the law itself declares its continuing validity. Here, mandatory andprohibitory statutes were transgressed in the execution of the alleged"acknowledgment." The compulsory language of Article 806 of the Civil Code wasnot complied with and the interdiction of Article 240 of the Notarial Law wasbreached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directowere all completely void.The Court cannot turn a blind eye to Atty. Directo's participation in thepreparation, execution and unlawful "acknowledgment" of Felisa Tamio deBuenaventura's will. Had he exercised his notarial commission properly, theintent of the law to effectuate the decedent's final statements[15] as expressed inher will would not have come to naught. [16] Hence, Atty. Directo should showcause why he should not be administratively sanctioned as a member of the bar and as an officer of the court.WHEREFORE, the petition is hereby DENIED.Costs against petitioner.Let a copy of this decision be furnished the Commission on Bar Discipline of the

Integrated Bar of the Philippines for investigation, report and recommendation onthe possible misconduct of Atty. Macario O. Directo.SO ORDERED.G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the DeceasedBrigido Alvarado, CESAR ALVARADO, petitioner,vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIOQUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO,respondents.

Before us is an appeal from the Decision dated 11 April 1986 1 of the First CivilCases Division of the then Intermediate Appellate Court, now Court of Appeals,

which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta.Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial willentitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner)and expressly revoked a previously executed holographic will at the timeawaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.

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

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9December 1977. On the 29th day of the same month, a codicil entitled "Kasulatanng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may PetsaNobiembre 5, 1977 ni Brigido Alvarado" was executed changing somedispositions in the notarial will to generate cash for the testator's eye operation.Brigido was then suffering from glaucoma. But the disinheritance and revocatoryclauses were unchanged. As in the case of the notarial will, the testator did notpersonally read the final draft of the codicil. Instead, it was private respondentwho read it aloud in his presence and in the presence of the three instrumentalwitnesses (same as those of the notarial will) and the notary public who followedthe reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon thetestator's death on 3 January 1979 by private respondent as executor with theCourt of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner,in turn, filed an Opposition on the following grounds: that the will sought to beprobated was not executed and attested as required by law; that the testator wasinsane or otherwise mentally incapacitated to make a will at the time of itsexecution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion'sshare of the testator's estate; and lastly, that the signature of the testator wasprocured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon inthe Opposition, a Probate Order was issued on 27 June 1983 from which anappeal was made to respondent court. The main thrust of the appeal was that thedeceased was blind within the meaning of the law at the time his "Huling Habilin"and the codicil attached thereto was executed; that since the reading required byArt. 808 of the Civil Code was admittedly not complied with, probate of thedeceased's last will and codicil should have been denied.

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

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

Regarding the first issue, there is no dispute on the following facts: BrigidoAlvarado was not totally blind at the time the will and codicil were executed.However, his vision on both eyes was only of "counting fingers at three (3) feet"by reason of the glaucoma which he had been suffering from for several yearsand even prior to his first consultation with an eye specialist on14 December 1977.

The point of dispute is whether the foregoing circumstances would qualifyBrigido as a "blind" testator under Art. 808 which reads:

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

Petitioner contends that although his father was not totally blind when the willand codicil were executed, he can be so considered within the scope of the termas it is used in Art. 808. To support his stand, petitioner presented before the trialcourt a medical certificate issued by Dr. Salvador R. Salceda, Director of theInstitute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise




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was admitted by private respondent. 7 Dr. Roasa explained that although thetestator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his firstconsultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, heldthat the testator could still read on the day the will and the codicil were executedbut chose not to do so because of "poor eyesight." 9 Since the testator was stillcapable of reading at that time, the court a quo concluded that Art. 808 need notbe complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capableof reading at the time his will and codicil were prepared, the fact remains and thiswas testified to by his witnesses, that Brigido did not do so because of his"poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for privaterespondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight intothe scope of the term "blindness" as used in Art. 808, to wit:

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

Clear from the foregoing is that Art. 808 applies not only to blind testators butalso to those who, for one reason or another, are "incapable of reading the(ir)will(s)." Since Brigido Alvarado was incapable of reading the final drafts of hiswill and codicil on the separate occasions of their execution due to his "poor,""defective," or "blurred" vision, there can be no other course for us but to

conclude that Brigido Alvarado comes within the scope of the term "blind" as it isused in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did soconfortably with his instructions. Hence, to consider his will as validly executedand entitled to probate, it is essential that we ascertain whether Art. 808 had beencomplied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shallbe read twice; once, by one of the instrumental witnesses and, again, by thenotary public before whom the will was acknowledged. The purpose is to makeknown to the incapacitated testator the contents of the document before signingand to give him an opportunity to object if anything is contrary to hisinstructions.

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

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

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

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

In the case at bar, private respondent read the testator's will and codicil aloud inthe 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 thesigning and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficientlymade known and communicated to the testator. On the contrary, with respect tothe "Huling Habilin," the day of the execution was not the first time that Brigidohad affirmed the truth and authenticity of the contents of the draft. Theuncontradicted testimony of Atty. Rino is that Brigido Alvarado alreadyacknowledged that the will was drafted in accordance with his expressed wisheseven prior to 5 November 1977 when Atty. Rino went to the testator's residenceprecisely for the purpose of securing his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on5 November and 29 December 1977. The notary public and the three instrumental

witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty.Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of thethree instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were of his own free will. Brigido answeredin the affirmative. 16 With four persons following the reading word for word withtheir own copies, it can be safely concluded that the testator was reasonablyassured that what was read to him (those which he affirmed were in accordancewith his instructions), were the terms actually appearing on the typewrittendocuments. This is especially true when we consider the fact that the threeinstrumental witnesses were persons known to the testator, one being hisphysician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to

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

As a final word to convince petitioner of the propriety of the trial court's ProbateOrder and its affirmance by the Court of Appeals, we quote the followingpronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid the substitution of wills andtestaments and to guaranty their truth and authenticity. Therefore the laws onthe subject should be interpreted in such a way as to attain these primordialends. But, on the other hand, also one must not lose sight of the fact that it isnot the object of the law to restrain and curtail the exercise of the right to makea will. So when an interpretation already given assures such ends, any other

interpretation whatsoever, that adds nothing but demands more requisitesentirely unnecessary, useless and frustrative of the testator's will, must bedisregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable termsin his "Huling Habilin" and the codicil attached thereto. We are unwilling to castthese aside fro the mere reason that a legal requirement intended for hisprotection was not followed strictly when such compliance had been renderedunnecessary by the fact that the purpose of the law, i.e., to make known to theincapacitated testator the contents of the draft of his will, had already beenaccomplished. To reiterate, substantial compliance suffices where the purposehas been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondentCourt of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory.Costs against petitioner.

SO ORDERED.

Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.

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