EN BANC

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

In the Matter of the summary settlement of the Estate of the deceased
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the
will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the
following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has certified the case to
us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages (pages
4 and 5 of the record) double space. The first page is signed by Juan Bello and under his
name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate
A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the
signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael
Ignacio, at the bottom of which appears the signature of T. de los Santos and below his
signature is his official designation as the notary public who notarized the said testament. On
the first page on the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of said last Will and
Testament, also appears the signature of the three (3) instrumental witnesses and on that
second page on the left margin appears the signature of J uan Bello under whose name
appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is
duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis
supplied)
The appeal squarely presents the following issue: Does the signature of Dr. J uan A. Abello above
the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga,"
comply with the requirements of law prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribedat the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witness in the
presence of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence and by his express direction," is practically the same
as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as
follows:
No will, except as provided in the preceding section shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the testator himself sign the will, or if he
cannot do so, the testator's name must be written by some other person in his presence and by his
express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et
al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where
the testator does not know how, or is unable, to sign, it will not be sufficient that one of the
attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person signing
in his stead in the place where he could have signed if he knew how or was able to do so, and
this in the testator's presence and by his express direction; so that a will signed in a manner
different than that prescribed by law shall not be valid and will not be allowed to be probated.
Where a testator does not know how, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner:
J ohn Doe by the testator, Richard Doe; or in this form: "By the testator, J ohn Doe, Richard
Doe." All this must be written by the witness signing at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the
bottom of the will the full name of the testator and his own name in one forms given above. He
did not do so, however, and this is failure to comply with the law is a substantial defect which
affects the validity of the will and precludes its allowance, notwithstanding the fact that no one
appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of
Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that
the name of the testatrix was signed at her express direction; it is unimportant whether the person
who writes the name of the testatrix signs his own or not. Cases of the same import areas follows:
(Ex ParteJ uan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the
will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the
express requirement in the law that the testator must himself sign the will, or that his name be
affixed thereto by some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of
the will denied. With costs against petitioner.

FIRST DIVISION

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Al varado, CESAR ALVARADO,petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA
and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO,respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986
1
of the First Civil Cases Division of
the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27
J une 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 will entitled "Huling
Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court
of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent
who were present at the execution, the testator did not read the final draft of the will himself.
Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same
aloud in the presence of the testator, the three instrumental witnesses and the notary public. The
latter four followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977.
On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in
his presence and in the presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3
J anuary 1979 by private respondent as executor with the Court 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 be probated was not executed and attested as required by law; that the
testator was insane or otherwise mentally incapacitated to make a will at the time of its execution
due to senility and old age; that the will was executed under duress, or influence of fear 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's share of the testator's estate; and lastly, that the signature
of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 J une 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's
last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies of the instruments. The
appellate court then concluded that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the testator the contents of the
drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for 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: Brigido Alvarado was not totally
blind at the time the will and codicil were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute),
6
the
contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was
admitted by private respondent.
7
Dr. Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14
December 1977, the day of his first consultation.
8


On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator
could still read on the day the will and the codicil were executed but chose not to do so because of
"poor eyesight."
9
Since the testator was still capable of reading at that time, the court a quo
concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the
time his will and codicil were prepared, the fact remains and this was testified to by his witnesses,
that Brigido did not do so because of his "poor,"
10
"defective,"
11
or "blurred"
12
vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez
13
provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator ifhe is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with
his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for
one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but
to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art.
808. Unless the contents were read to him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider
his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808
had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and
the five-paged codicil who read the same aloud to the testator, and read them only once, not twice
as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single
reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will
and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege.
14


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


Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the document were of his own free will.
Brigido answered in the affirmative.
16
With four persons following the reading word for word with
their own copies, it can be safely concluded that the testator was reasonably assured that what
was read to him (those which he affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is especially true when we consider the fact
that the three instrumental witnesses were persons known to the testator, one being his physician
(Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the
will, the formal imperfections should be brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the testator's will.
17


As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v.
Abangan,
18
to wit:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator's will, must be
disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained
pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED.

EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 J anuary 1958 by the Court of
First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of
the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9,
1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less,
before the death of the testatrix, as the same was handed to him and his wife; that the witness
testified also that he recognized all the signatures appearing in the holographic will (Exh. C)
as the handwriting of the testatrix and to reinforce said statement, witness presented the
mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of
attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh.
G-2), and that there were further exhibited in court two residence certificates (Exhs. H and
H-1) to show the signatures of the testatrix, for comparison purposes; that said witness,
Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in
the handwriting of the testatrix as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said witness, in answer to a question
of his counsel admitted that the holographic will was handed to him by the testatrix.
"apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was asked by counsel if he was
familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again whether the penmanship
referred to in the previous answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the
proceedings that the assessed value of the property of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by
undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will, and that the same was
actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as
appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the handwriting and signature of a
holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will
were contested, we are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three witnesses to identify the handwriting
of the testator, under penalty of having the probate denied. Since no witness may have been
present at the execution of a holographic will, none being required by law (Art. 810, new Civil
Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a
matter beyond the control of the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the law does not so express) "that the
will and the signature are in the handwriting of the testator". There may be no available witness of
the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility.
That is evidently the reason why the second paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it
can not be ignored that the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of
ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no
witness need be present (Art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court
deem it necessary", which reveal that what the law deems essential is that the Court should be
convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the
court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call
for expert evidence. On the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The
duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la
conclusion de que siempre o por lo menos, en la mayor parte de los casos, el J uez debe
acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo,
aunque ya esten insertas en los autos del expediente las declaraciones testificales. La
prudencia con que el J uez debe de proceder en resoluciones de transcendencia asi lo exige,
y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor
garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano
de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al J uez
acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el J uez lo estime conveniente), haya habido o no
testigos y dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su
significacion, para responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable
inference can be drawn from a party's failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion.
But evidence already on record shall not be retaken. No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ.,
concur.

THIRD DIVISION
G.R. No. 122880 April 12, 2006
FELIX AZUELA,Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO,Respondents.
D E C I S I O N
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to assert a
few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805
and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is
sufficient to deny probate. A notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the
due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator and the witnesses.
A notarial will executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial
will of Eugenia E. Igsolo, which was notarized on 10 J une 1981. Petitioner is the son of the cousin
of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o
testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian
at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo
ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik
sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko
ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na
pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa
bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at
ang pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on J an. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
J UANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232; NOTARIO PUBLIKO
Page No. 86; Until Dec. 31, 1981
Book No. 43; PTR-152041-1/2/81-Manila
Series of 1981 TAN #1437-977-8
1

The three named witnesses to the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as
the attorney-in-fact of "the 12 legitimate heirs" of the decedent.
2
Geralda Castillo claimed that the
will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense
in several court cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the properties of the
decedent.
3
It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad.
Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who
died in 1965,
4
and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.
5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedents signature did not appear on the second page
of the will, and the will was not properly acknowledged. These twin arguments are among the
central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.
6
The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and J uanito Estrada. The RTC also called to fore "the modern tendency in
respect to the formalities in the execution of a will x x x with the end in view of giving the testator
more freedom in expressing his last wishes;"
7
and from this perspective, rebutted oppositors
arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements
of a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo
1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim
ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters
placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as
to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the
left margin of the second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will.
8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of
Appeals reversed the trial court and ordered the dismissal of the petition for probate.
9
The Court of
Appeals noted that the attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate.
10

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

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which
we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of
the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause
to state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.
12
There was an incomplete attempt to comply with this requisite, a space having been allotted
for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca
13
and In re: Will of Andrada.
14
In Uy Coque, the Court noted that among
the defects of the will in question was the failure of the attestation clause to state the number of
pages contained in the will.
15
In ruling that the will could not be admitted to probate, the Court
made the following consideration which remains highly relevant to this day: "The purpose of
requiring the number of sheets to be stated in the attestation clause is obvious; the document
might easily be so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the total number
of sheets such removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of the document will involve the inserting
of new pages and the forging of the signatures of the testator and witnesses in the margin, a
matter attended with much greater difficulty."
16

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

Against these cited cases, petitioner cites Singson v. Florentino
19
and Taboada v. Hon. Rosal,
20

wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of
pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not
state the number of pages used in the will, however, the same was found in the last part of the
body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be
that the attestation clause must contain a statement of the number of sheets or pages composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of
the will itself. But here the situation is different. While the attestation clause does not state the
number of sheets or pages upon which the will is written, however, the last part of the body of the
will contains a statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in
the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that,in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The other page
which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of
the Will. The will does not even contain any notarial acknowledgment wherein the number of
pages of the will should be stated.
21

Both Uy Coqueand Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.
22
Reliance on these cases remains apropos, considering that
the requirement that the attestation state the number of pages of the will is extant from Section
618.
23
However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of
the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from
the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence
of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in substantial compliance with
all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their execution with the end in view of giving
the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the
[modern tendency] in respect to the formalities in the execution of wills."
24
However, petitioner
conveniently omits the qualification offered by the Code Commission in the very same paragraph
he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions
to prevent the commission of fraud and the exercise of undue and improper pressure and
influence upon the testator."
25

Caneda v. Court of Appeals
26
features an extensive discussion made by J ustice Regalado,
speaking for the Court on the conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in wills.
27
Uy Coqueand Andrada are
cited therein, along with several other cases, as examples of the application of the rule of strict
construction.
28
However, the Code Commission opted to recommend a more liberal construction
through the "substantial compliance rule" under Article 809. A cautionary note was struck though
by J ustice J .B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination
of the will itself: whether all the pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury i n the probate proceedings.
29

(Emphasis supplied.)
The Court of Appeals did cite these comments by J ustice J .B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one
of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other,
30
the other
omission cited by J ustice J .B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which
can be supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."
31

Thus, a failure by the attestation clause to state that the testator signed every page can be liberally
construed, since that fact can be checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one anothers presence should be considered a fatal
flaw since the attestation is the only textual guarantee of compliance.
32

The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages.
33
The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is comprised of, as was
the situation in Singsonand Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation
of notarial wills.
34
Compliance with these requirements, however picayune in impression, affords
the public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.
35
The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the fruition of the
testators incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the
will itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before the
notary public.
Cagro v. Cagro
36
is material on this point. As in this case, "the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin."
37
While three (3) J ustices
38
considered
the signature requirement had been substantially complied with, a majority of six (6), speaking
through Chief J ustice Paras, ruled that the attestation clause had not been duly signed, rendering
the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in compliance with the legal mandate that
the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the
witnesses.
39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the
will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind
these two classes of signature are distinct from each other. The signatures on the left-hand corner
of every page signify, among others, that the witnesses are aware that the page they are signing
forms part of the will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing
the value of the instrumental witnesses signatures on each and every page, the fact must be
noted that it is the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they witnessed and signed the will
and all the pages thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge.
The requirement under Article 806 that "every will must be acknowledged before a notary public by
the testator and the witnesses" has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been segregated from the other requirements
under Article 805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805,
and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."
40
By no manner of
contemplation can those words be construed as an acknowledgment. An acknowledgment is the
act of one who has executed a deed in going before some competent officer or court and declaring
it to be his act or deed.
41
It involves an extra step undertaken whereby the signor actually declares
to the notary that the executor of a document has attested to the notary that the same is his/her
own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor.
42
Ordinarily, the language of the jurat
should avow that the document was subscribed and sworn before the notary public, while in this
case, the notary public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the decedent and the instrumental
witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and
not merely subscribed and sworn to. The will does not present any textual proof, much less one
under oath, that the decedent and the instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act.
43
The acknowledgment coerces the testator
and the instrumental witnesses to declare before an officer of the law that they had executed and
subscribed to the will as their own free act or deed. Such declaration is under oath and under pain
of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of
spurious wills, or those executed without the free consent of the testator. It also provides a further
degree of assurance that the testator is of certain mindset in making the testamentary dispositions
to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806.
A notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses
sign each and every page of the will on the left margin, except the last; and that all the pages shall
be numbered correlatively in letters placed on the upper part of each page. In this case, the
decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"
44
of the will on its first page. Also, the will itself is
not numbered correlatively in letters on each page, but instead numbered with Arabic numerals.
There is a line of thought that has disabused the notion that these two requirements be construed
as mandatory.
45
Taken in isolation, these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.

EN BANC
February 15, 1912
G.R. No. 6285
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. J imenez for appellant.
Ramon Querubin for appellees.
MORELAND, J .:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another,
No. 6284,[[1]]just decided by this court, wherein there was an application for the probate of an
alleged last will and testament of the same person the probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last
will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. J imenez are alleged to have been witnesses to the execution thereof. By the
terms of said will Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or write, the same had been read
to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to
sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the deceased
on various grounds, among them that a later will had been executed by the deceased. The will
referred to as being a later will is the one involved in case No. 6284 already referred to.
Proceeding for the probate of this later will were pending at the time. The evidence of the
proponents and of the opponents was taken by the court in both cases for the purpose of
considering them together.
In the case before us the learned probate court found that the will was not entitled to probate upon
the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix
to the will for and on her behalf looked more like the handwriting of one of the other witnesses to
the will than that of the person whose handwriting it was alleged to be. We do not believe that the
mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was
written by Severo Agayan at her request and in her presence and in the presence of all the
witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at her
request and in her presence and in the presence of all the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her name, being, from its appearance, not the
same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such
fact indicating that the person who signed the name of the testatrix failed to sign his own. We do
not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads
as follows:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the
testator's name written by some other person in his presence, and by his expenses direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of
each. . . .
This is the important part of the section under the terms of which the court holds that the person
who signs the name of the testator for him must also sign his own name The remainder of the
section reads:
The attestation shall state the fact that the testator signed the will, or caused it to be signed by
some other person, at his express direction, in the presence of three witnesses, and that they
attested and subscribed it in his presence and in the presence of each other. But the absence of
such form of attestation shall not render the will invalid if it is proven that the will was in fact signed
and attested as in this section provided.
From these provisions it is entirely clear that, with respect to the validityof the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing
is that it clearly appears that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her presence and in the
presence of each other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that it is not essential to the validityof the
will. Whether one parson or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain wording of the statute shows
that the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under
the law; and the reasons underlying the provisions of the statute relating to the execution of wills
do not in any sense require such a provision. From the standpoint of language it is an impossibility
to draw from the words of the law the inference that the persons who signs the name of the testator
must sign his own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is unable
to write may be signed by another by express direction to any instrument known to the law. There
is no necessity whatever, so far as the validity of the instrument is concerned, for the person who
writes the name of the principal in the document to sign his own name also. As a matter of policy it
may be wise that he do so inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the principal. But as a matter
of essential validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it be written
by himself or by another at his request, it is none the less valid, and the fact of such signature can
be proved as perfectly and as completely when the person signing for the principal omits to sign
his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of
the person signing the name of the principal is, in the particular case, a complete abrogation of the
law of wills, as it rejects and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parteSantiago (4 Phil. Rep., 692), Ex parteArcenas (4 Phil.
Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The
headnote in the case last above stated gives an indication of what all of cases are and the
question involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the
will. Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in which the
person who signed the will for the testator wrote his own name to the will instead of writing that of
the testator, so that the testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parteArcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be
signed in the following manner: "J ohn Doe, by the testator, Richard Roe;" or in this form: "By the
testator. J ohn Doe, Richard Roe." All this must be written by the witness signing at the request of
the testator.
The only question for decision in that case, as we have before stated, was presented by the fact
that the person who was authorized to sign the name of the testator to the will actually failed to
sign such name but instead signed his ownthereto. The decision in that case related only to that
question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set
forth no reason whatever why the will involved in the present litigation should not be probated. The
due and legal execution of the will by the testatrix is clearly established by the proofs in this case.
Upon the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have already spoken. We there held that said later will not
the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to
enter an order in the usual form probating the will involved in this litigation and to proceed with
such probate in accordance with law.
Arellano, C.J ., Mapa and Carson, J J ., concur.
Separate Opinions
TORRES, J .,concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not
expressly require that, when the testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of either of them, writes in the name
of the said testator or testatrix must also sign his own name thereto, it being sufficient for the
validity of the will that the said person so requested to sign the testator or testatrix write the name
of either in his own handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of wills
executed in accordance with the provisions of the Code of Civil Procedure, never has the specific
point just above mentioned been brought into question. Now for the first time is affirmed in the
majority opinion, written by the learned and distinguished Hon. J ustice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the request of the
testator or testatrix, writes the name of either of the latter to the will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this court in which, as
will be seen further on, upon applying the said section 618 of Code of Civil Procedure and
requiring its observance in cases where the testator or testatrix is unable or does not know how to
sign his or her name, expressly prescribed the practical method of complying with the provisions of
the law on the subject. Among these decisions several were written by various justices of this court,
some of whom are no longer on this bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parteDelfin Santiago,[[1]] concerning the probate
of a will, reads as follows:
Wills, authentication of. Where a will is not signed by a testator but by some other person in his
presence and by his direction, such other person should affix the name of the testator thereto, and
it is not sufficient that he sign his own name for and instead of the name of the testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parteArcenas,[[2]] in the matter of the probate of
a will, states:
1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil Procedure;
consequently where a testator is unable to sign his name, the person signing at his request must
write at the bottom of the will the full name of the testator in the latter's presence, and by his
express direction, and then sign his own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,[[3]] the following
statements appear:
Wills; inability to sign; signature by another. The testatrix was not able to sign her name to the
will, and she requested another person to sign it for her. Held, That the will was not duly executed.
(Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parteSantiago, No. 2002,
August 18, 1905.)
The following syllabus precedes decision No. 3907:[[4]]
Execution of wills. Where it appears in a will that the testator has stated that by reason of his
inability to sign his name he requested one of the three witnesses present to do so, and that as a
matter of fact, the said witness wrote the name and surname of the testator who, stating that the
instrument executed by him contained his last will, put the sign of the cross between his said name
and surname, all of which details are set forth in a note which the witnesses forthwith subscribed in
the presence of the testator and of each other, said will may be probated.
When the essential requisites of section 618 of the Code of Civil Procedure for the execution and
validity of a will have been complied with, the fact that the witness who was requested to sign the
name of the testator, omitted to state the words 'by request of .......... the testator,' when writing with
his own hand the name and surname of the said testator, and the fact that said witness subscribed
his name together with the other witnesses and not below the name of the testator, does not
constitute a defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria
Siason:[[5]]
The recital of the name of the testator as written below the will at his request serves as a signature
by a third person.
Moreover among the grounds given as a basis for this same decision, the following appears:
In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parteSantiago (4 Phil. Rep., 692), Ex parteArcenas, above quoted, or in Abaya vs. Zalamero. In
the Arcenas case the court pointed out the correct formula for a signature which ought to be
followed, but did not mean to exclude any other for substantially equivalent.
In the syllabus of decision No. 4454, Ex parteOndevilla et al.,[[6]] the following appears:
The testatrix was unable to sign her will with her own hand and requested another person to sign
for her in her presence. This the latter did, first writing the name of the testatrix and signing his own
name below: Held, That the signature of the testatrix so affixed is sufficient and a will thus
executed is admissible to probate. (Ex parteArcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 5149[[7]]sets forth that:
The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity.
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered as inserted subsequently,
which we neither affirm nor deny, because a specific determination either way is unnecessary, in
our opinion the signature for the testatrix placed outside of the body of the will contains the name
of the testatrix as if she signed the will, and also the signature of the witness who, at her request,
wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the
other witnesses then present. And this fully complies with the provisions of section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established that the person who,
at the request of the testator or testatrix, signed the latter's or the former's name and surname to
the will must affix his own signature; but it no less true that, in prescribing the method in which the
provisions of the said section 618 to be complied with, it was stated that, in order that a will so
executed might be admitted to probate, it was an indispensable requisite that the person
requested to sign in place of the testator or testatrix, should write the latter's or the former's name
and surname at the foot of the will in the presence and under the direction of either, as the case
might be, and should afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or testatrix at the
foot of the will should likewise affix his own signature thereto, name and surname, though it be
considered to be neither a rule nor a requisite necessary to follow for the admission of the will to
probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the aforesaid
decisions, it was deemed to be a complement and integral part of the required conditions for the
fulfillment of the provisions of the law.
It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by
stating in the decisions hereinabove quoted that the name and surname of the said person should
be affixed by him, no act prohibited by law was recommended or suggested, nor may such a detail
be understood to be contrary or opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to require that
the person requested to write the name of the testator or testatrix in the will also sign the
instrument with his own name and surname. This statement induces us to believe that, in behalf of
the inhabitants of this country and for sake of an upright administration of justice, it should be
maintained that such a signature must appear in the will, since no harm could accrue to anyone
thereby and, on the contrary, it would serve as a guarantee of the certainty of the act performed
and also might eliminate some possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal of article
695 of the Civil Code and, while he conceded that, in the examination and qualification of a will for
the purpose of its probate, one has but to abide by the provisions of said section 618 of the Code
of Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly
impelled by a traditional conception of the laws which he has known since youth, relative to the
form of execution of testaments, he believed it to be a vary natural and common sense requisite
that the signature, with his own name and surname, of the person requested to write in the will the
name and surname of the testator or testatrix should form a part of the provisions of the
aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person
before referred to a requisite deemed to be convenient and prudent in the majority opinion
formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they appear, and signed
without dissent by all the justices of the court on various dates. None of them hesitated to sign the
decisions, notwithstanding that it was expressly held therein that the person above mentioned
should, besides writing in the will the name and surname of the testator or testatrix, also sign the
said instrument with his own name and surname.
Without being understood to criticize the provision contained in the said section 618 of the Code of
Civil Procedure it will not be superfluous to mention that the system adopted in this section is the
same as was in vogue under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony given in criminal or civil
cases, in which event any person at all might write the name and surname of the witness who was
unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn,
and, this done, it was considered that the instrument had been signed by the witness, though it is
true that all these formalities were performed before the judge and the clerk or secretary of the
court, which thereupon certified that such procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person
who writes the name and surname of the testator or testatrix does so by the order and express
direction of the one or of the other, and this fact must be recorded in the will; but in the matter of
the signature of a deposition, the witness, who could not or did not know how to sign, did not need
to designate anyone to write the deponent's name and surname, and in practice the witness
merely made a cross beside his name and surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous statutes, among
them those of the Civil Code, the person or witness requested by the testator or testatrix who was
not able or did not know how to sign, authenticated the will by signing it with his own name and
surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article
695 of the Civil Code contains the following provisions bearing on the subject:
Should the testator declare that he does not know how, or is not able to sign, one of the attesting
witnesses or another person shall do so for him at his request, the notary certifying thereto. This
shall be done if any one of the witnesses can not sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed
by the old laws with respect to the signing of a will by a testator or testatrix who did not know how
or who could not sign, consisted in that the person appointed and requested by the testator or
testatrix to sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom
of the will and after the words "at the request of the testator," his own name, surname and
paragraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by these legal
provisions, which it may said, are traditional to them in the ideas they have formed of the existing
laws in the matter of procedure in compliance therewith as regards the execution and signing of a
will, should have believed that, after the name and surname of the testator or testatrix had been
written at the foot of the will, the person who signed the instrument in the manner mentioned
should likewise sign the same with his own name and surname.
If in various decisions it has been indicated that the person who, under the express direction of the
testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will
with his own name and surname, and since this suggestion is not opposed or contrary to the law,
the undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary,
it should be maintained as a requisite established by the jurisprudence of this court, inasmuch as
such a requisite is not contrary to law, to public order, or to good custom, is in consonance with a
tradition of this country, does not prejudice the testator nor those interested in an inheritance, and,
on the contrary, constitutes another guarantee of the truth and authenticity of the letters with which
the name and surname of the testator of testatrix are written, in accordance with his or her desire
as expressed in the will.
Even though the requisites referred to were not recognized in jurisprudence and were unsupported
by any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs
observed in this country, it ought, in the humble opinion of the writer, to be maintained for the
benefit of the inhabitants of the Islands and for the sake of a good administration of justice,
because it is not a question of a dangerous innovation or of one prejudicial to the public good, but
a matter of the observance of a convenient, if not a necessary detail, introduced by the
jurisprudence of the courts and which in the present case has filed a vacancy left by the positive
written law.
The foregoing considerations, which perhaps have not the support of better premises, but in the
opinion of the undersigned, are conducive to the realization of the purposes of justice, have
impelled him to believe that the proposition should be enforced that the witness requested or
invited by the testator or testatrix to write his or her name to the will, should also subscribed the
instrument by signing thereto his own name and surname; and therefore, with the proper finding in
this sense, and reversal of the judgment appealed from, that the court below should be ordered to
proceed with the probate of the will of the decedent, Maria Salomon, in accordance with the law.

EN BANC
April 29, 1953
G.R. No. L-5826
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures
of the three witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in compliance with the legal mandate that
the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the testator and any or all of the
witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J.,dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of the law
and, therefore, should be admitted to probate . It appears that the will was signed by the testator
and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the testator in their presence
and in the presence of each other but also that when they did so, the attestation clause was
already written thereon. Their testimony has not been contradicted. The only objection set up by
the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses
do not appear immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil.,
476), this court said that when the testamentary dispositions "are wholly written on only one sheet
signed at the bottom by the testator and three witnesses (as the instant case),their signatures on
the left margin of said sheet would be completely purposeless." In such a case, the court said, the
requirement of the signatures on the left hand margin was not necessary because the purpose of
the law which is to avoid the substitution of any of the sheets of the will, thereby changing the
testator's dispositions has already been accomplished. We may say the same thing in
connection with the will under consideration because while the three instrumental witnesses did
not sign immediately by the majority that it may have been only added on a subsequent occasion
and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause
was already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact that it i not
the object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary useless and frustrative of the testator's last will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation
of wills, the purpose of which, in case of doubt, is to give such interpretation that would have the
effect of preventing intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J.,dissenting:
I cuncur in Mr. J ustice Bautista's dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only question is whether such signatures are
legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide that the
attesting witness should sign the clause at the bottom. In the absence of such provision, there is
no reason why signatures on the margin are not good. A letter is not any the less the writter's
simply because it was signed, not at the conventional place but on the side or on top.
Feria, J., concurs.

SECOND DIVISION

G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA,petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate
of Mateo Caballero,respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, J r. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children
and already in the twilight years of his life, executed a last will and testament at his residence in
Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of that last will.
1
It was declared therein,
among other things, that the testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo,
Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.
2


Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the petition for hearing on August 20,
1979 but the same and subsequent scheduled hearings were postponed for one reason to another.
On May 29, 1980, the testator passed away before his petition could finally be heard by the
probate court.
3
On February 25, 1981, Benoni Cabrera, on of the legatees named 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 so appointed by the probate court in its order of March 6, 1981.
4


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


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


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


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


On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will
and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome
the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will and Testament now marked
Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original
petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want the signature
of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it
would seem that despite their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the
idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses
for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law.
9



Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void
for the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence of the testator and of one
another.
On October 15, 1991, respondent court promulgated its decision
10
affirming that of the trial court,
and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with
Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be considered
as having substantialy complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is "we do
certify that the testament was read by him and the attestator, Mateo Caballero, has
published unto us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper part of each
page, as his Last Will and Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of us (emphasis
supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of the
law would have it that the testator signed the will "in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law."
11



Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was
denied in the latter's resolution of J anuary 14, 1992,
12
hence this appeal now before us.
Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with
the law and settled jurisprudence on the matter and are now questioning once more, on the same
ground as that raised before respondent court, the validity of the attestation clause in the last will of
Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death.
13
Under the Civil Code, there are two kinds 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 the
Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation should state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall be interpreted
to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator 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 must personally read the will, if able to do so. Otherwise, he
should designate two persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is
acknowledged.
16


The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the 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 have been executed in a language or dialect known to the testator.
17


However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses.
18
The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify
that the instrument has been executed before them and to the manner of the execution the
same.
19
It is a separate memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed.
20
It is made for the purpose of preserving in a
permanent form a record of the facts that attended the execution of a particular will, so that in case
of failure of the memory of the attesting witnesses, or other casualty, such facts may still be
proved.
21


Under the third paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will,
22
should state (1) the number of the pages usedupon which the will is
written; (2) that the testator signed, or expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed
the signing by the testator of the will and all its pages, and that said witnesses also signed the
willand every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages;
23
whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument executed by the testator and attested to
by the witnesses.
24


Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of
the will as embodied in the attestation clause.
25
The attestation clause, therefore, provide strong
legal guaranties for the due execution of a will and to insure the authenticity thereof.
26
As it
appertains only to the witnesses and not to the testator, it need be signed only by them.
27
Where it
is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add
the clause on a subsequent occasion in the absence of the testator and 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 following manner:
The underlying and fundamental objectives permeating the provisions on the law on wills
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in the
execution of wills. . . .
29



2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page
thereof bearing the respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the
other hand, is recited in the English language and is likewise signed at the end thereof by the three
attesting witnesses hereto.
30
Since it is the proverbial bone of contention, we reproduce it again for
facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the Testament
was read by him and the testator, MATEO CABALLERO; has published unto us the
foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said testator and in the
presence of each and all of us.

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


In Taboada vs. Rizal,
32
we clarified that attestation consists in witnessing the testator's execution of
the will in order to see and take note mentally that those things are done which the statute requires
for the execution of a will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it involves a mental
act, there would be no means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the
express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses the testator sign the will and all its
pages in their presence and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact
that while it recites that the testator indeed signed the will and all its pages in the presence of the
three attesting witnesses and states as well the number of pages that were used, the same does
not expressly state therein the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the
other hand, although the words "in the presence of the testator and in the presence of each and all
of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed the will and every page thereof in
the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is not proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article 805"
(Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the
left margin of each page by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witness affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly observed, the presence of said signatures
only establishes the fact that it was indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the testator and of each other. The execution
of a will is supposed to be one act so that where the testator and the witnesses sign on various
days or occasions and in various combinations, the will cannot be stamped with the imprimatur of
effectivity.
33


We believe that the further comment of former J ustice J .B.L. Reyes
34
regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is correct
and should be applied in the case under consideration, as well as to future cases with similar
questions:
. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are
three or the will was notarized. All theses are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to sign did
so in the presence of each other must substantially appear in the attestation clause,
being the only check against perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed
and attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact that
the attesting witnesses signed each and every page of the will in the presence of the testator and
of each other.
35
In such a situation, the defect is not only in the form or language of the attestation
clause but the total absence of a specific element required by Article 805 to be specifically stated
in the attestation clause of a will. That is precisely the defect complained of in the present case
since there is no plausible way by which we can read into the questioned attestation clause
statement, or an implication thereof, that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and that said instrumental witnesses also
signed the will and every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually
complied within the execution of the will. In other words, defects must be remedied by intrinsic
evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down 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 against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also
emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. The
subsequent cases of Avera vs. Garcia,
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 the formalities that should
be observed in the execution of wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of Saguinsin,
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 the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause
had failed to state that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed, with these reasons
therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely
on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In reWill of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In reEstate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases beginning with Abangan vs.
Abangan([1919], 40 Phil., 476), continuing through Aldaba vs. Roque([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios([1924], 46 Phil., 922), and culminating in Nayve
vs. Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our task is to contrast and,
if possible, conciliate the last two decisions cited by opposing counsel, namely, those of
Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which
does not recite that the witnesses signed the will and each and every page thereof on the
left margin in the presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate the fact that
the testator and the witnesses reciprocally saw the signing of the will, for such an act
cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also
held that the fact that the testator and the witnesses signed each and every page of the
will can be proved also by the mere examination of the signatures appearing on the
document itself, and the omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If
we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal, decision was concurred in by only four members
of the court, less than a majority, with two strong dissenting opinions; the Quintana
decision was concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was promulgated in December,
1924, while the Quintana decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act No.
2645, and in section 634 of the same Code, as unamended. It is in part provided in
section 61, as amended that "No will . . . shall be valid . . . unless. . .." It is further
provided in the same section that "The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the testator and of each other."
Codal section 634 provides that "The will shall be disallowed in either of the following
case: 1. If not executed and attested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and makes use of the negative,
to enforce legislative intention. It is not within the province of the courts to disregard the
legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the
extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once
more appeared to revive the seeming diversity of views that was earlier threshed out therein. The
cases of Quinto vs. Morata,
49
Rodriguez vs. Alcala,
50
Enchevarria vs. Sarmiento,
51
and Testate
Estate of Toray
52
went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et
al.,
53
Rey vs. 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 the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance
with the formalities prescribed by Section 618 of the Code of Civil Procedure as
amended by Act No. 2645. The Supreme Court of the Philippines had previously upheld
the strict compliance with the legal formalities and had even said that the provisions of
Section 618 of the Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of
the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has become more
liberal in the interpretation of the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, J une 21,
1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to
the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or
in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the
requirements of article 829."
65





The so-called liberal rule, the Court said in Gil vs. Murciano,
66
"does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us when
and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to
fill a void in any part of the document or supply missing details that should appear in the will itself.
They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to
determine the existence or absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal
and, correspondingly, would not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by evidence aliunde would result in
the invalidation of the attestation clause and ultimately, of the will itself.
67


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

FIRST DIVISION
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals
1
and its
resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established and the
handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate of the holographic will in question be called for.
The rule is that after plaintiff has completed presentation of his evidence and the defendant
files a motion for judgment on demurrer to evidence on the ground that upon the facts and the
law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule
35 Revised Rules of Court). J udgment may, therefore, be rendered for appellant in the instant
case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.
2

The facts are as follows:
On April 6, 1990, Evangeline Calugay, J osephine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the
Regional Trial Court, Misamis Oriental, Branch 18, a petition
3
for probate of the holographic will of
the deceased, who died on J anuary 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of
sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud,
undue influence, and duress employed in the person of the testator, and will was written
voluntarily.
The assessed value of the decedent's property, including all real and personal property was about
P400,000.00, at the time of her death.
4

On J une 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition
5
to the
petition for probate, alleging that the holographic will was a forgery and that the same is even
illegible. This gives an impression that a "third hand" of an interested party other than the "true
hand" of Matilde Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition
is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the
dates and the signature should appear at the bottom after the dispositions, as regularly done and
not after every disposition. And assuming that the holographic will is in the handwriting of the
deceased, it was procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead
of presenting their evidence, filed a demurrer
6
to evidence, claiming that respondents failed to
establish sufficient factual and legal basis for the probate of the holographic will of the deceased
Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being
well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the
purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for
insufficiency of evidence and lack of merits.
7

On December 12, 1990, respondents filed a notice of appeal,
8
and in support of their appeal, the
respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto
Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo
Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their
testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special
proceedings for the probate of the holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the signature of the deceased,
Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by the party against
whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify
the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same
was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her
aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house
for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the
deceased, she acquired familiarity with her signature and handwriting as she used to accompany
her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of
commercial buildings, and deceased always issued receipts. In addition to this, she (witness
Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanayfurther testified that at the time of the death of Matilde Vda. de Ramonal,
she left a holographic will dated August 30, 1978, which was personally and entirely written, dated
and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in
said will, were that of the deceased.
Fiscal Rodolfo Wagatestified that before he was appointed City Fiscal of Cagayan de Oro, he was
a practicing lawyer, and handled all the pleadings and documents signed by the deceased in
connection with the proceedings of her late husband, as a result of which he is familiar with the
handwriting of the latter. He testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the application
of the deceased for pasture permit and was familiar with the signature of the deceased, since the
signed documents in her presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased
since birth, and was in fact adopted by the latter. That after a long period of time she became
familiar with the signature of the deceased. She testified that the signature appearing in the
holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. J osefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. J osefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband J usto is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision
9
ruling that the appeal was
meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.
J ustice J . B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator"
and who can declare (truthfully, of course, even if the law does not express) "that the will and
the signature are in the handwriting of the testator." There may be no available witness
acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to
give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second paragraph of article 811
prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will
is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be considered mandatory only in
case of ordinary testaments, precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court
deem it necessary", which reveal that what the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the court may still, and in fact it should
resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of the
having the probate denied. No witness need be present in the execution of the holographic
will. And the rule requiring the production of three witnesses is merely permissive. What the
law deems essential is that the court is convinced of the authenticity of the will. Its duty is to
exhaust all available lines of inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And because the law leaves it to the trial
court to decide if experts are still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court expresses dissatisfaction
with the testimony of the lay witnesses.
10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other
witnesses definitely and in no uncertain terms testified that the handwriting and signature in the
holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by
the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been
able to present credible evidence to that the date, text, and signature on the holographic will
written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory.
The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly
denotes an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word "shall," when used in a statute is mandatory.
11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to
prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and
the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the true
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to
establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they
were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of
First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the signature appearing in the
holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voter's affidavit, which was not even produced as it was no longer
available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.
12

x x x x x x x x x
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.
13

x x x x x x x x x
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as
one of the receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept
records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De
Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.
14

x x x x x x x x x
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of
sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda
De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.
15

x x x x x x x x x
Q. You testified that at time of her death she left a will. I am showing to you a document
with its title "tugon" is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is
this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.
16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either
mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or
write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was
not found in the personal belongings of the deceased but was in the possession of Ms. Binanay.
She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde
Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the
possession of your mother?
A. 1985.
17

x x x x x x x x x
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you
and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. J ust to seek advice.
Q. Advice of what?
A. About the will.
18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners,
the legally adopted children of the deceased. Such actions put in issue her motive of keeping the
will a secret to petitioners and revealing it only after the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could
go to her building to collect rentals, is that correct?
A. Yes, sir.
19

x x x x x x x x x
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.
20

x x x x x x x x x
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
identified a document marked as Exhibit R. This is dated J anuary 8, 1978 which is only about
eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal
is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not
sickly and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just
tried to explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and
the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas
here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature
appearing in the alleged holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.
21

Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and J usto Ramonal
for the period of 22 years. Could you tell the court the services if any which you rendered to
Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then to her
transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.
22

x x x x x x x x x
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978
there is a signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.
23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the
deceased was because she lived with her since birth. She never declared that she saw the
deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually
I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is J usto Ramonal.
24

x x x x x x x x x
Q. Can you tell this court whether the spouses J usto Ramonal and Matilde Ramonal have
legitimate children?
A. As far as I know they have no legitimate children.
25

x x x x x x x x x
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case
is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court
before.
26

x x x x x x x x x
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of J usto Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.
27

x x x x x x x x x
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering professional service to the deceased Matilde
Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to
show that I have assisted then I can recall.
28

x x x x x x x x x
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell
the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.
29

x x x x x x x x x
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signature because it is similar to the signature of the
project of partition which you have made?
A. That is true.
30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,
31
ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals,
32
we said that "the object of the solemnities surrounding
the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial ends. But on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of the
testator, which is why if the holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents,
who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed
that the will was in her possession as early as 1985, or five years before the death of the
deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance
at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners
asked Ms. Binanay to compare the documents which contained the signature of the deceased with
that of the holographic will and she is not a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of the
disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,
33
and the signatures in
several documents such as the application letter for pasture permit dated December 30, 1980,
34

and a letter dated J une 16, 1978,
35
the strokes are different. In the letters, there are continuous
flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic
will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the
deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce evidence in support
of their opposition to the probate of the holographic will of the deceased Matilde Seo vda. de
Ramonal.1wphi1.nt
No costs.
SO ORDERED.

FIRST DIVISION

G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ,petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY,respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz,
the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging
the will was executed through fraud, deceit, misrepresentation and undue influence; that the said
instrument was execute without the testator having been fully informed of the content thereof,
particularly as to what properties he was disposing and that the supposed last will and testament
was not executed in accordance with law. Notwithstanding her objection, the Court allowed the
probate of the said last will and testament Hence this appeal by certiorari which was given due
course.
The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at
least three credible witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. J amaloas J r., Dr. Francisco
Paares and Atty. Angel H. Teves, J r., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of
the testator and of each other, considering that the three attesting witnesses must appear before
the notary public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is
the supposed executor of the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three attesting witnesses even
if the notary public acted as one of them, bolstering up his stand with 57 American J urisprudence,
p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of
the appellant that the last will and testament in question was not executed in accordance with law.
The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (J avellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or
preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the
notary public himself, he would have to avow assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary
public were one of the attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the validity of his own act. It would
place him in inconsistent position and the very purpose of acknowledgment, which is to minimize
fraud (Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely
as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122
So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because the notaries public and witnesses
referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file
another with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would be
in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act
as such and of Article 806 which requires that the testator and the required number of witnesses
must appear before the notary public to acknowledge the will. The result would be, as has been
said, that only two witnesses appeared before the notary public for or that purpose. In the
circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of
the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set
aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

EN BANC
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,
petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance
with a petition for the probate of a holographic will allegedly executed by the deceased,
substantially in these words:
Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:
Vicente Esguerra, Sr. ............................................. 5 Bahagi
Fausto E. Gan ......................................................... 2 Bahagi
Rosario E. Gan ......................................................... 2 Bahagi
Filomena Alto .......................................................... 1 Bahagi
Beatriz Alto .............................................................. 1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana
sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan,
Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may
kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San J ose, J udge,
1

refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this
appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
J imenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,
who was then preparing for the bar examinations. The latter replied it could be done without any
witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of
November 5, 1951, in her residence at J uan Luna Street, Manila, Felicidad wrote, signed and
dated a holographic will substantially of the tenor above transcribed, in the presence of her niece,
Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in
the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan J imenez, a niece.
To these she showed the will, again in the presence of Felina Esguerra, who read it for the third
time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his
well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and
read the will for the last time.
2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians, Dr.
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the
United States wherein for several weeks she was treated for the disease; that thereafter she felt
well and after visiting interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors
and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's advice the patient
stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made
no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of
which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret,
so that her husband would not know it, it is strange she executed it in the presence of Felina
Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing
that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed
the former to see and read the will several times; (c) it is improbable that the decedent would have
permitted Primitivo Reyes, Rosario Gan J imenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that
her purpose being to conceal the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is
true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner
being precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of
his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of
them, were presented in the motion to reconsider; but they failed to induce the court a quoto
change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the case should be decided not
on the weakness of the opposition but on the strength of the evidence of the petitioner, who has
the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may
execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form and may be made in or out of the Philippines, and
need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190,
which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three
credible witnesses in eachand every page; such witnesses to attest to the number of sheets used
and to the fact that the testator signed in their presence and that they signed in the presence of the
testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud,
to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40
Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved.
(Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must
testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and the circumstances its due
execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written, dated,
and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the
document itselfas material proof of authenticity, and as its own safeguard, since it could at any time,
be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a
holographic will" says the New Civil Code, "it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be
required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in
the testator's hand. However, the oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after comparing the will with other writings
or letters of the deceased, have come to the conclusion that such will has not been written by the
hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony
may use its own visual sense, and decide in the face of the document, whether the will submitted
to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidenceare not available. And then the only guaranty of authenticity
3
the testator's handwriting
has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesseswho have allegedly seen it and who declare that it was in the handwriting of the testator?
How can the oppositor prove that such document was not in the testator's handwriting? His
witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those written by the deceased; but what
witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has
seen and read a document which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to
the execution, but also as to the contentsof the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will
by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen
4
an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require itsidentity to be established by the three witnesses
who depose that they have no reasonable doubt that the willwas written by the testator (Art. 691).
And if the judge considers that the identity of the will has been proven he shall order that it be filed
(Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a
greater degree. It requires that the surviving spouse and the legitimate ascendants and
descendants be summoned so that they may make "any statement they may desire to submit with
respect to the authenticity of the will." As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent others from knowing either its
execution or its contents, the above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the face of the document itselfthey
think the testator wrote it. Obviously, this they can't do unless the will itselfis presented to the Court
and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying
with the will if they think it authentic, or to oppose it, if they think it spurious.
5
Such purpose is
frustrated when the document is not presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilegeto comply with
the will, if genuine, a right which theyshould not be denied by withholding inspection thereof from
them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the
Supreme Court of Spain of J une 5, 1925, which deniedprotocolization or probate to a document
containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated,
the signature and some words having been torn from it. Even in the face of allegations and
testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will.
The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish)
the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo
688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo
el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de
la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se
desprende la necesidad de que el documento se encuentreen dichas condiciones en el
momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion;
y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez
y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma,
y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal
si procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero J uzgo, admittedly the basis of
the Spanish Civil Code provisions on the matter.
6

PRECEDENTES LEGALES--Fuero J uzgo, libro segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o
al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos
por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la
manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la
manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature.
7

Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.
8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as
a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this
Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the
appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner
Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference
lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself;
in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now).
The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible
9
only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in
all good faith affirm its genuineness and authenticity. The will having been lost the forger may
have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and
the error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only oneof them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.
10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would
be testifying to a factwhich they saw, namely the act of the testator of subscribing the will; whereas
in the case of a lost holographic will, the witnesses would testify as to their opinionof the
handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly
contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's
disbelief. In addition to the dubious circumstances described in the appealed decision, we find it
hard to believe that the deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will
to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this
leads to another point: if she wanted so much to conceal the will from her husband, why did she
not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's
trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.
6.
11

Wherefore, the rejection of the alleged will must be sustained.
J udgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.

EN BANC
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.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated J anuary 3, 1943. The will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of J anuary, one thousand nine
hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino J avier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino J avier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at
the end of the will by Atty. Florentino J avier at the express request of the testator in the presence of
the testator and each and every one of the witnesses; (2) to certify that after the signing of the
name of the testator by Atty. J avier at the former's request said testator has written a cross at the
end of his name and on the left margin of the three pages of which the will consists and at the end
thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the
presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino J avier to write the testator's name under his express direction, as required
by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino J avier is a surplusage. Petitioner's theory is that the cross is as much
a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
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 signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross
cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and
by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

EN BANC
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.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document
and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of J osefa
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 the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of J osefa Villacorte, deceased,
and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper
"Manila chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator. 1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting
as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
J une 1, 1959, he filed a motion for the admission of an amended and supplemental petition,
alleging that the decedent left a will executed in duplicate with all the legal requirements, and that
he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only
on or about May 26, 1959. On J une 17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental
petition, but by order of J uly 20, 1959, the court admitted said petition, and on J uly 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their
respective evidence, and after several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that J osefa Villacorte died in the City of
Manila on September 12, 1958; that on J une 2, 1956, the late J osefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
J usto P. Torres, J r. and J ose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney J ose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared
by attorney Fermin Samson, who was also present during the execution and signing of the
decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, J udge
Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the
decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and authenticity of the said will. So
did the Notary Public before whom the will was acknowledged by the testatrix and attesting
witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two copies of J osefa
Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original
and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing
of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. J ose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and
its duplicate were subscribed at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will
were duly numbered; that the attestation clause thereof contains all the facts required by law to be
recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was executed on one single occasion in
duplicate copies; and that both the original and the duplicate copies were duly acknowledged
before Notary Public J ose Oyengco of Manila on the same date J une 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-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
was deceived into adopting as her last will and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof, whereby
proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not
to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty
of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed
both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously,
on the same in the presence of the three attesting witnesses, the notary public who acknowledged
the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate
were executed in Tagalog, a language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together before they were actually
signed; that the attestation clause is also in a language known to and spoken by the testatrix and
the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the
testatrix appearing in the duplicate original were not written by the same had which wrote the
signatures in the original will leaves us unconvinced, not merely because it is directly contradicted
by expert Martin Ramos for the proponents, but principally because of the paucity of the standards
used by him to support the conclusion that the differences between the standard and questioned
signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix besides those affixed to the original
of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the
signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This
is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are
radical differences that would justify the charge of forgery, taking into account the advanced age of
the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate
being signed right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings were affixed
to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we
do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial,
did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In reButalid, 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, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made
in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into
the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be
litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in
Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and
exclude each other; their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured
not only the fact that the testatrix and two other witnesses did sign the defective page, but also by
its bearing the coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single witness over
whose conduct she had no control, where the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation
clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause and the acknowledgment before
the Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages
of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of
the legal requirements in order to guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into
a dilemma; if the original is defective and invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being superfluous
and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in admitting the
amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal,
JJ., concur.
Barrera and Dizon, JJ., took no part.

EN BANC
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of J uly 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in
the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the
deceased Da. Apolinaria Ledesma Vda. de J avellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses.
The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased,
appealed from the decision, insisting that the said exhibits were not executed in conformity with
law. The appeal was made directly to this Court because the value of the properties involved
exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary
capacity and that the dispositions were procured through undue influence. These grounds were
abandoned at the hearing in the court below, where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the
instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal
affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether
the codicil was thereby rendered invalid and ineffective. These questions are the same ones
presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria
Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma.
Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the
will) inform the deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was
not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office
and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and
returned it with the statement that no one would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's
rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria
Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in
the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on
March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should
have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own
house in order to execute her will, when all three witnesses could have easily repaired thither for
the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of
Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap
used it; and they claimed ability to recall that word four years later, despite the fact that the term
meant nothing to either. It is well known that what is to be remembered must first be rationally
conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive
that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but
she could remember no other date, nor give satisfactory explanation why that particular day stuck
in her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and
Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from
the deceased's quarters, and standing at a much lower level, so that conversations in the main
building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado
sought to cure his testimony by claiming that he was upstairs in a room where the servants used to
eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was
plainly induced by two highly leading questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18
years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon
us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the
signing of the testament or of the codicil, and the identity of the person who inserted the date
therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed
inability to remember all the details of the transaction. Neither are we impressed by the argument
that the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena
propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence
that those terms are of common use even in the vernacular, and that the deceased was a woman
of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament,
this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be
acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to
be the same ones who attested the will of 1950) asserted that after the codicil had been signed by
the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not
do so, but brought the codicil to his office, and signed and sealed it there. The variance does not
necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather
due to a well-established phenomenon, the tendency of the mind, in recalling past events, to
substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of
the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing
of the testator, witnesses and notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the
presence of each other,all that is thereafter required is that "every will must be acknowledged
before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow
to the certifying officer the authenticity of their signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in the case before us. The subsequent
signing and sealing by the notary of his certification that the testament was duly acknowledged by
the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence
their separate execution out of the presence of the testatrix and her witnesses can not be said to
violate the rule that testaments should be completed without interruption (Andalis vs.Pulgueras, 59
Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no
reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the
new Civil Code does not contain words requiring that the testator and the witnesses should
acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.

FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW,petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW,respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and J ose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
with the rights of said Church, and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations, corrections, and insertions without the
proper authentication by the full signature of the testatrix as required by Article 814 of the Civil
Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will
the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.
After trial, respondent J udge denied probate in an Order, dated September 3, 197 3, reading in
part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit
"C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is
whether the win, Exhibit 'C', should be admitted to probate although the alterations
and/or insertions or additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art. 814 on the ground that
they themselves agreed thru their counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable
to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K.
Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no
necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should
be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa
gave an Identical commentary when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895."
2


However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry
the requisite of full authentication by the full signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But that change of mind can neither be
given effect because she failed to authenticate it in the manner required by law by affixing her full
signature,
The ruling in Velasco, supra,must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
not the essence and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be determined with certitude. As
Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article
814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador bajo su firnia segun previene
el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo
de que pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y
respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la
ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados,
raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma
prevenida, paro no el documento que las contenga, y con mayor motivo cuando las
palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten
duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de
ortografia o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916,
que declara nulo un testamento olografo por no estar salvada por el testador la
enmienda del guarismo ultimo del ao en que fue extendido
3
(Emphasis ours).


WHEREFORE, this Petition is hereby dismissed and the Decision of respondent J udge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.

SECOND DIVISION
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.
SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR,petitioners-appellants,
vs.
COURT OF APPEALS,
1
GAUDENCIO LABRADOR, and JESUS LABRADOR,
respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is
dated, as provided for in Article 810
2
of the New Civil Code.
The antecedent and relevant facts are as follows: On J une 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, J esus, Gaudencio, J osefina, J uliana, Hilaria and J ovita, all
surnamed Labrador, and a holographic will.
On J uly 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, J esus Labrador (now deceased but substituted by his
heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has
been extinguished or revoked by implication of law, alleging therein that on September 30, 1971,
that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator
Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of
oppositors J esus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had
been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, J esus Labrador sold said parcel of
land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and J esus, for
the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado
allegedly had already acquired by devise from their father Melecio Labrador under a holographic
will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I,
being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered a
joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring
null and void the Deed of Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00
representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with legal
interest thereon from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988
modified said joint decision of the court a quo by denying the allowance of the probate of the will
for being undated and reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of
J une 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE
PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as
follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known
as the SEA as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time for me to
partition the fishponds which were and had been bought or acquired by us, meaning with
their two mothers, hence there shall be no differences among themselves, those among
brothers and sisters, for it is I myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if
they so need, in order that there shall be nothing that anyone of them shall complain
against the other, and against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be benefitted with all those
property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am
signing my signature below hereof, and that this is what should be complied with, by all
the brothers and sisters, the children of their two mothers J ULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It
is worthy of note to quote the first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father. (emphasis supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning
the respective assignments of the said fishpond," and was not the date of execution of the
holographic will; hence, the will is more of an "agreement" between the testator and the
beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was thus
a failure to comply with Article 783 which defines a will as "an act whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to
take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the
will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he
was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain
possession of the property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate.
The private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand
Pesos (P5,000.00).
SO ORDERED.

EN BANC
G.R. No. L-10751 March 29, 1916
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, applicant-appellee,
vs.
MARIA CABALLERO Y APARICI, objector-appellant.
Ruperto Montinola and Aurelio Montinola for appellant.
Attorney-General Avancea for appellee.
TRENT, J.:
This case is a proceeding for the compulsory registration of certain lands in the municipality of
Iloilo, begun under the provisions of section 61 of Act No. 926 and carried forward in accordance
with the provisions of the Cadastral Act (No. 2259).
Maria Cabellero, one of the respondents, claimed that lot No. 5 on the cadastral plan did not
include all the land covered by her Torrens title issued in record No. 1894 on November 6, 1912.
The court thereupon ordered the surveyor of the Bureau of Lands to investigate this claim and to
report the result. The pertinent part of the surveyor's report reads:
Expediente No. 1894 calls for all of lot No. 5 and in addition lot No. 5-a as shown on
accompanying sketch, which is made a part of this report.
From the final order of the court, directing that in the new certificate of title lot No. 5-a be excluded,
Maria Caballero appealed.
All admit that the appellant's Torrens title covers lot No. 5-a, or in other words, lot No. 5-a is a part
of lot No. 5. The judgment of the Land Court, as a result of which the appellant's Torrens title
issued, has long since become final, so there can be no question about the validity or finality of the
appellant's title. But it is urged that the order of the lower court excluding parcel No. 5-a be
sustained because "it is based on sound principles and is essential to the proper handing of
cadastral cases." With this proposition we cannot agree. We see no reason why a part of the
appellant's land, which is covered by a Torrens title, should be taken from her and given to
someone else. It may be true that in administering the Cadastral Law it will be necessary to issue
new certificates of title to these holding Torrens titles for lands within the cadastral survey, but if
this is done, the new certificate must cover all of the land contained in the old one. The appellant's
theory of this case is so clear that a further discussion of the question is unnecessary.
For the foregoing reasons, the order appealed from is reversed, without costs in this instance. So
ordered.
Torres, Johnson, Moreland, and Araullo, JJ., concur.

EN BANC
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J .:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present
in the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small
room with the testator and the other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates
the affirmance of the decree admitting the document to probate as the last will and testament of
the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid
down in the case of J aboneta vs. Gustilo(5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the testator and the other describing witnesses
signed the instrument in the inner room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner room, it would have
been invalid as a will, the attaching of those signatures under circumstances not being done "in the
presence" of the witness in the outer room. This because the line of vision from this witness to the
testator and the other subscribing witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing
witnesses may be held to have executed the instrument in the presence of each other if it appears
that they would not have been able to see each other sign at that moment, without changing their
relative positions or existing conditions. The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness J avellana signed the document he was actually
and physically present and in such position with relation to J aboneta that he could see everything
that took place by merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an alleged will sign the instrument
in the presence of each other does not depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such that by merely casting
the eyes in the proper direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as
the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
Arellano, C. J ., Mapa, Moreland and Trent, J J ., concur.

EN BANC
G.R. No. 42258 September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of
J anuary 29, 1935, praying for the reconsideration of the decision of the court and that of the same
date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied upon in her
pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces
of the will where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a physical or
mental condition to make it.
We have again reviewed the evidence to determine once more whether the errors assigned by the
oppositor in her brief have not been duly considered, whether some fact or detail which might have
led us to another conclusion has been overlooked, or whether the conclusions arrived at in our
decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She
had a slight cold on said date for which reason she was visited by her physician, Dr. Florencio
Manuel. Said physician again visited her three or four days later and found her still suffering from
said illness but there was no indication that she had but a few days to live. She ate comparatively
well and conserved her mind and memory at least long after noon of September 7, 1933. She took
her last nourishment of milk in the morning of the following day, September 8, 1933, and death did
not come to her until 11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon
on September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to
said attorney her desire to make a will and bequeath her property to the petitioner Victorio Payad
in compensation according to her, for his diligent and faithful services rendered to her. Victorio
Payad had grown up under the care of the testatrix who had been in her home from childhood. The
will was written by Attorney Almario in his own handwriting, and was written in Spanish because he
had been instructed to do so by the testatrix. It was later read to her in the presence of Pedro L.
Cruz, J ose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix
approved all the contents of the document and requested Attorney Almario to write her name
where she had to sign by means of her thumbmark in view of the fact that her fingers no longer
had the necessary strength to hold a pen. She did after having taken the pen and tried to sign
without anybody's help. Attorney Almario proceeded to write the name of the testatrix on the three
pages composing the will and the testatrix placed her thumbmark on said writing with the help of
said attorney, said help consisting in guiding her thumb in order to place the mark between her
name and surname, after she herself had moistened the tip of her thumb with which she made
such mark, on the ink pad which was brought to her for said purpose. Said attorney later signed
the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and J ose
Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under
the same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will on September 7,
1983, and that she never made said will because she was no longer physically or mentally in a
condition do so, the oppositor cites the testimony of J ulian Rodriguez, Gliceria Quisonia, Paz de
Leon and her own.
J ulian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the
morning of September 7, 1933, in the house of the deceased where they were then living, and that
the first time that they saw him there was at about 12 o'clock noon on September 8th of said year,
when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario
arrived there accompanied only by woman named Pacing. They did not state that Almario was
accompanied by Pedro L. Cruz, J ose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses
of the will. Said two witnesses, however, could not but admit that their room was situated at the
other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and
that their said room and that of Victorio Payad are separated by the stairs of the house; that
Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that J ulian
Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month.
Gliceria Quisonia further stated that in the morning of September 7th, she prepared the noonday
meal in the kitchen which was situated under the house. Under such circumstances it is not
strange that the two did not see the testatrix when, according to the evidence for the petitioner, she
made her will and signed it by means of her thumbmark. In order to be able to see her and also
Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them to
enter the room where the deceased was, or at least the adjoining room where the will was
prepared by Attorney Almario, but they did not do so.
Gliceria Quisonia and J ulian Rodriguez also testified that on the 7th the testatrix was already so
weak that she could not move and that she could hardly be understood because she could no
longer enunciate, making it understood thereby, that in such condition it was absolutely impossible
for her to make any will. The attorney for the oppositor insists likewise and more so because,
according to him and his witness Paz de Leon, two days before the death of the testatrix, or on
September 6, 1933, she could not even open her eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the
petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will
because, to corroborate them, we have of record the testimony of the physician of the deceased
and the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome
of these proceedings does not affect them in the least. The two testified that two, three or four days
before the death of the testatrix, they visited her in her home, the former professionally, and the
latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a
conversation. They stated that she spoke to them intelligently; that she answered all the questions
which they had put to her, and that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for
reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death,
the deceased left a letter signed by herself, placed in a stamped envelope and addressed to
Teodoro R. Yangco, with instructions not to open it until after her death; (2) that there are
witnesses competent to testify on the letter in question, in addition to other evidence discovered
later, which could not be presented at the trial; (3) that in the letter left by the deceased, she
transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the property
in question should become Yangco's. From this alleged fact, the oppositor infers that the deceased
never had and could not have had the intention to make the will in question, and (4) that said
oppositor knew of the existence of said letter only after her former attorney, Alejandro Panis, had
been informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named J ose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another
supplementary motion alleging that she had discovered some additional new evidence consisting
in the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that Victorio Payad had
called him on September 5, 1933, to prepare the will of the deceased but he did not do so because
after seeing her he had been convinced that she could not make a will because she had lost her
speech and her eyes were already closed.
The affidavits of Attorneys J ose Cortes and Gabino Fernando Viola, substantially affirming the
facts alleged by the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys J ose Cortes and Gabino Fernando Viola are not and cannot be newly
discovered evidence, and are not admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney J ose Cortes in his affidavit long
before this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney
J ose Cortes revealed to the attorney for oppositor the fact that the deceased had left a letter
whereby she transferred all her property to Teodoro R. Yangco, and the judgment was rendered
only on J anuary 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly discovered
evidence inasmuch as the judgment of the lower court was favorable to her. She, however,
overlooks the fact that she also appealed from the decision of the lower court and it was her duty,
under the circumstances, to inform this court of the discovery of said allegedly newly discovered
evidence and to take advantage of the effects thereof because, by so doing, she could better
support her claim that the testatrix made no will, much less the will in question. Said evidence, is
not new and is not of the nature of that which gives rise to a new trial because, under the law, in
order that evidence may be considered newly discovered evidence and may serve as a ground for
a new trial, it is necessary (a) that it could not have been discovered in time, even by the exercise
of due diligence; (b) that it be material, and (c) that it also be of such a character as probably to
change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense that, even
considering it newly discovered evidence, it will be sufficient to support the decision of the lower
court and modify that of this court. It is simply hearsay or, at most, corroborative evidence. The
letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be
considered important or material evidence but this court has not the letter in question before it, and
no attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not
more competent than that of Attorney J ose Cortes because, granting that when he was called by
Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went to her house
on September 5, 1933, the deceased was almost unconscious, was unintelligible and could not
speak, it does not necessarily mean that on the day she made her will, September 7, 1933, she
had not recovered consciousness and all her mental faculties to capacitate her to dispose of all her
property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is
not and can not be newly discovered evidence of the character provided for by law, not only
because it does not exclude the possibility that testatrix had somewhat improved in health, which
possibility became a reality at the time she made her will because she was then in the full
enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz, J ose Ferrer Cruz,
Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the hearing of
these proceedings in the Court of First Instance, Attorney Viola was present, and the oppositor
then could have very well called him to the witness stand, inasmuch as her attorney already knew
what Attorney Viola was to testify about, yet she did not call him. The last fact is shown by the
following excerpt from pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to
present as the last witness Attorney Fernando Viola who was called by the petitioner Victoria
Payad to prepare the will of the deceased in his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? Mr. PANIS:
No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish to call to the
witness stand? Mr. PANIS: Your Honor, he is busy in the branch, presided over by J udge
Sison.
COURT: And when can he come? Mr. PANIS. I am now going to find out, Your Honor. If the
other party, Your Honor, is willing to admit what said witness is going to testify in the sense
that said Attorney Fernando Viola went to the house of the deceased on September 5, 1933,
for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio Payad; if
the other party admits that, then I am going waive the presentation of the witness Mr.
Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other party would not admit that
proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without
prejudice to the other party's calling the witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness
stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it
might have been because she considered his testimony unimportant and unnecessary, and at the
present stage of the proceedings, it is already too late to claim that what said attorney may now
testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court in the original decision, and the
additional reason that, as held in the case of Chung Kiat vs. Lim Kio(8 Phil., 297), the right to a
new trial on the ground of newly discovered evidence is limited to ordinary cases pending in this
court on bills of exceptions, the motion for reconsideration and a new trial filed by the oppositor are
hereby denied, ordering that the record be remanded immediately to the lower court. So ordered.
Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA
deceased, MARCELA RODELAS,petitioner-appellant,
vs.
AMPARO ARANZA, ET AL.,oppositors-appellees, ATTY. LORENZO SUMULONG,intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On J anuary 11, 1977, appellant filed a petition with the Court of First Instance of Rizal
for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by
the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule 75,
section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it was
not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On J uly 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on J anuary
25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than
14 years from the time of the execution of the will to the death of the decedent, the fact
that the original of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On J uly 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox
copy of the holographic will may be allowed because comparison can be made with the standard
writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a
photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the deceased
can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated J uly 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS,petitioners,
vs.
ANDRES R. DE JESUS, JR.,respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, J r. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de J esus.

GUTIERREZ, J R., J.:
This is a petition for certiorari to set aside the order of respondent Hon. J ose C. Colayco, Presiding
J udge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will
of the deceased Bibiana Roxas de J esus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de J esus and Bibiana Roxas de J esus, Special Proceeding
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de J esus and Bibiana Roxas
de J esus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
J esus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de J esus. On May 26, 1973,
respondent J udge J ose Colayco set the hearing of the probate of the holographic Win on J uly 21,
1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de J esus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of
the deceased Bibiana R. de J esus was found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de J esus
and Manuel Roxas de J esus who likewise testified that the letter dated "FEB./61 " is the
holographic Will of their deceased mother, Bibiana R. de J esus. Both recognized the handwriting
of their mother and positively Identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de J esus because a it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent J udge J ose C. Colayco issued an order allowing the probate of
the holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de J esus filed a motion for reconsideration alleging inter alia that the
alleged holographic Will of the deceased Bibiana R. de J esus was not dated as required by Article
810 of the Civil Code. She contends that the law requires that the Will should contain the day,
month and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent J udge Colayco reconsidered his earlier order and disallowed
the probate of the holographic Will on the ground that the word "dated" has generally been held to
include the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de
J esus, is hereby disallowed for not having been executed as required by the law. The
order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de J esus is a valid compliance with the Article 810 of the Civil Code
which reads:
ART. 810. A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void for
non-compliance with Article 810 of the New Civil Code in that the date must contain the year,
month, and day of its execution. The respondent contends that Article 810 of the Civil Code was
patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code
whose Supreme Courts had consistently ruled that the required date includes the year, month, and
day, and that if any of these is wanting, the holographic Will is invalid. The respondent further
contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in the execution of holographic Wills
are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills. We should not overlook the liberal
trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt
is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law on wigs
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficien
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the formalities in the
execution of wills. (Report of the Code Commission, p. 103)
In J ustice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos(27 SCRA 327)
he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that
which the law can make. For this reason, intestate succession is nothing more than a
disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege
Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated,
said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be considered in
the application of any given rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although
the document may suffer from some imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although compliance
is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite
is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which
a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith and fraud
in its execution nor was there any substitution of Wins and Testaments. There is no question that
the holographic Will of the deceased Bibiana Roxas de J esus was entirely written, dated, and
signed by the testatrix herself and in a language known to her. There is also no question as to its
genuineness and due execution. All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary capacity at the time of the
execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that
the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic
Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to
be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether
or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810
of the Civil Code, probate of the holographic Will should be allowed under the principle of
substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and
SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana
Roxas de J esus is reinstated.
SO ORDERED.

FIRST DIVISION

G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO TABOADA,petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of
the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of
the will, the motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last
will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire testamentary dispositions and is signed at
the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses
and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding J udge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same
order, the petitioner was also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex parte praying for a thirty-day period within which to deliberate on any step to be taken
as a result of the disallowance of the will. He also asked that the ten-day period required by the
court to submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal.
The said motions or incidents were still pending resolution when respondent J udge Avelino S.
Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new J udge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix
and all the three instrumental and attesting witnesses sign at the endof the will and in the presence
of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the lacier witnesses and signed the will and the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to the witnesses, it shall be interpreted to them.
The respondent J udge interprets the above-quoted provision of law to require that, for a notarial
will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of
one another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after
the signature of the testatrix. He contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where the signatures are to be found
as long as this space or particular location wherein the signatures are found is consistent with
good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end
by the testator himself or by the testator's name written by another person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those
things are, done which the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of Identification of such paper as the will which was executed
by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in
this case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, J udge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing
witness Vicente Timkang to be the same will executed by the testatrix. There was no question of
fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The other page
which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including
this page".
In Singson v. Florentino, et al.(92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of
pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the win is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy 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 decidendiof these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will
if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the attestation
clause does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by
purely technical considerations.

Icasiano v. Icasiano(11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control where the purpose of the law to guarantee the
Identity of the testament and its component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on record attests to the fun observance
of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by
muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the
motion for appointment of a special administrator are set aside. The respondent court is ordered to
allow the probate of the wig and to conduct further proceedings in accordance with this decision.
No pronouncement on costs.
SO ORDERED.