[G.R. No. 2586. January 19, 1906.

]
TOMAS GUISON, Petitioner-Appellant, v. MARIA
CONCEPCION, Respondent.

SYLLABUS
1. 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. Instead of writing
her name he wrote his own upon the will. Held, That the will was not duly executed. (Following
Ex No. 2002, August 18, 1905.)

("So gave it before the witnesses Mr Ambrosio Reyes, Mariano de Leon and Flix Polintan,
Manila, Philippine Islands, and not I sign, signature to my request the same Feliciano Maglaqui,
in my presence and witnesses mentioned above, who also signed, each of them in the presence
of others and the mia." "(Signed) FELICIANO MAGLAQUI. "(Signed) Ambrose Kings.
"(Signed) MARIANO DE LEON. "(Signed) FELIX POLINTAN. "We Ambrosio Reyes, Mariano
de Leon and Flix Polintan, witnessed Filiciano Maglaqui, to plea for the Ms. Jacoba
Concepcin Salcedo and in the presence of the same and we signed the Testament foregoing;"
and so each one of us signed in the presence of others with such testadora. "Manila, three of
January in the year one thousand nine hundred and four. "(Signed) Ambrose Kings. "(Signed)
MARIANO DE LEON. "(Signed) FELIX POLINTAN." )
It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on
the will, wrote his own. Probate of the will was refused in the court below on the ground that the
name of the testatrix was not signed thereto, and the petitioner has appealed. The question
presented has been decided adversely to the appellant in the following cases: Ex parte Pedro
Arcenas Et. Al., 1 No. 1708, August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio Delfin
Santiago, 2 No. 2002, August 18, 1905 (4 Off. Gaz., 507.)

DECISION

WILLARD, J. :

The judgment of the court below is affirmed, with the costs of this instance against the appellant,
and after the expiration of twenty days judgment should be entered in accordance herewith and
the case remanded to the court below for execution. So ordered.
Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.

Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The last part of the
will is as follows:jgc:chanrobles.com.ph
"Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y Felix Polintan, de
Manila, Islas Filipinas, y por no yo poder firmar, firma a mi ruego el mismo Feliciano Maglaqui,
en mi presencia y de los mencionados testigos, quienes tambien suscriben, cada uno de ellos
en presencia de los otros y la mia.
"(Firmado) FELICIANO MAGLAQUI.
"(Firmado) AMBROSIO REYES.
"(Firmado) MARIANO DE LEON.
"(Firmado) FELIX POLINTAN.
"Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que Filiciano
Maglaqui, a ruego de la Sra. Jacoba Concepcion Salcedo y en presencia de la misma y la
nuestra, firmo el testamento que antecede; y que cada uno de nosotros lo firmo en presencia de
los otros y de dicha testadora.
"Manila, tres de Enero de mil novecientos cuatro.
"(Firmado) AMBROSIO REYES.
"(Firmado) MARIANO DE LEON.
"(Firmado) FELIX POLINTAN."

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G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and
another, No. 6284,1just 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. Jimenez are alleged to have been witnesses to the execution thereof. By the
terms of said will Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills
by her made. She also stated in said will that being unable to read or write, the same had been

read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo
Agayan to sign her name to it as testatrix.

the will invalid if it is proven that the will was in fact signed and attested as in this
section provided.

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.

From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not. The
important thing is that it clearly appears that the name of the testatrix was signed at her express
direction in the presence of three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute requires. It may be wise as a
practical matter that the one who signs the testator's name signs also his own; but that it is not
essential to the validity of 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.

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

2 | Page

Nor is such requirement found in any other branch of the law. The name of a person who is
unable to write may be signed by another by express direction to any instrument known to the
law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the
person who writes the name of the principal in the document to sign his own name also. As a
matter of policy it may be wise that he do so inasmuch as it would give such intimation as would
enable a person proving the document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it is unnecessary. The main thing
to be established in the execution of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his request, it is none the less valid, and
the fact of such signature can be proved as perfectly and as completely when the person signing
for the principal omits to sign his own name as it can when he actually signs. To hold a will
invalid for the lack of the signature of the person signing the name of the principal is, in the
particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point.
The headnote in the case last above stated gives an indication of what all of 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 parte Arcenas 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: "John Doe, by the testator, Richard Roe;" or in
this form: "By the testator. John Doe, Richard Roe." All this must be written by the
witness signing at the request of the testator.

The 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:

The only question for decision in that case, as we have before stated, was presented by the fact
that the person who was authorized to sign the name of the testator to the will actually failed to
sign such name but instead signed his own thereto. The decision in that case related only to that
question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set
forth no reason whatever why the will involved in the present litigation should not be probated.
The due and legal execution of the will by the testatrix is clearly established by the proofs in this
case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent
will, that is resolved in case No. 6284 of which we have already spoken. We there held that said
later will 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, JJ., concur.

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

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.
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:

3 | Page

The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible 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).

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.

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:

Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon,
JJ., concur

It will be noticed from the above-quoted section 618 of the Code of Civil Procedure
that where the testator does not know how, or is unable, to sign, it will not be sufficient
that one of the attesting witnesses signs the will at the testator's request, the notary
certifying thereto as provided in Article 695 of the Civil Code, which, in this respect,
was modified by section 618 above referred to, but it is necessary that the testator's
name be written by the person signing in his stead in the place where he could have
signed if he knew how or was able to do so, and this in the testator's presence and by
his express direction; so that a will signed in a manner different than that prescribed
by law shall not be valid and will not be allowed to be probated.
Where a testator does not know how, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe,
Richard Doe." All this must be written by the witness signing at the request of the
testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written
at the bottom of the will the full name of the testator and his own name in one forms
given above. He did not do so, however, and this is failure to comply with the law is a
substantial defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.

WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of
the will denied. With costs against petitioner.

G.R. No. L-4132

March 23, 1908

In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA,

Probate proceedings.
TRACEY, J.:
In this special proceedings for the legalization of a will, the Court of First Instance refused
probate on the ground that the instrument was not subscribed by the witnesses in the presence
of the testatrix and of each other as required by section 618 of the Code of Civil Procedure.
The testatrix was ill and confined to her house, the execution of the will taking place in the sala
where she lay upon a sofa. The witnesses differ as to whether the testatrix from where she lay
could read what was written at the table; and the first witness, after signing, went away from the
table. These two circumstances do not impair the validity of the execution of the will. The
witnesses being in the same apartment were all present and the statute does not exact that
either they are the testator shall read what has been written. Had one of the witnesses left the
room or placed himself so remotely therein as to be cut off from actual participation in the
proceedings, then the subscription might not have taken place in his presence within the
meaning of the law.
A second objection is suggested on this appeal, that the signature to the instrument is defective.
It ends in this form:
At the request of Seora Maria Siason.

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 Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under
the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply
with the express requirement in the law that the testator must himself sign the will, or that his
name be affixed thereto by some other person in his presence and by his express direction.

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CATALINO GEVA.
T. SILVERIO. FRUCTUOSO G. MORIN.
RAFAEL ESPINOS.
Section 618 of the Code of Civil Procedure reads as follows:

Requisites of will. No will, except as provided in the preceding section, shall be

valid to pass any estate, real of 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 express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and each of the other.
The attestation shall estate the fact that the testator signed the will, or caused it to be
signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of attestation shall not render
the will invalid if it is proven that the will was in fact signed and attested as in this
section provided.
The misunderstanding of this section arising from the incorrect rendering of into Spanish in the
official translation was corrected by what was said in the decision of this court in Ex
parte Arcenas (4 Phil. Rep., 700). Confusion has also come out of the different wording of the
two clauses of this section, the one specifying the requisites of execution and the other those of
the attestation clause. The concluding sentence of the section, however, makes clear that the
former and not the latter is to control. Consequently the will must be signed by the testator, or by
the testator's name written by some other person in his presence, and by his express direction,"
and the question presented in this case is, Are the words "Seora Maria Siason" her name
written by some other person? They undoubtedly are her name, but occurring as they do after
the words "at request of," it is contended that they form a part of the recital and not a signature,
the only signature being the names of the witnesses themselves. InGuison vs. Concepcion (5
Phil. Rep., 551) it was held that there was no signature, although the attestation clause which
followed the will contained the name of the testatrix and was thereafter signed by the witnesses.
The distinction between that case and the present one is one of the extreme nicety, and in the
judgment of the writer of this opinion should not be attempted. The majority of the court,
however, are of the opinion that the distinction is a tenable one inasmuch as in the Concepcion
will the name of the testatrix occurred only in the body of the attestation clause, after the first
signatures of the witnesses, whereas in this will it immediately follows the testament itself and
precedes the names of the witnesses.
In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs.
Zalamero.1 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 form substantially equivalent.
The decision of the court below is reversed, without costs, and that court is directed to admit the
instrument before it to probate as the last will of the testatrix. So ordered.
Arellano,
C.J.,
Willard, J., concurs in the result.

G.R. No. L-5149

Torres

and

JJ., concur.

Simplicia de los Santos having died on June 19, 1907, her surviving husband, Gregorio
Macapinlac, submitted her will to the Court of First Instance of Pampanga for probate. Macario
Alimurong, a nephew of the deceased, opposed the proceedings and requested that "the will of
the deceased, Doa Simplicia de los Santos, be declared null and void for either of the two
reasons" which he expresses, and which are:
(1) Because the will was not executed and signed by the witnesses in accordance with
the provisions of the Code of Civil Procedure now in force.
(2) Because it was executed under duress and undue and illegal influence on the part
of the persons benefited thereby or of a person acting in their interests.
The trial having been held and evidence adduced, the trial court declared the following facts to
be proven:
(1) That at 6 o' clock on the evening of June 17, 1907, Simplicia de los Santos, who
was sick but in full possession of all her faculties, executed her will, which is the
document attached to the record, Exhibit No. 1 of the petitioner.
(2) That after the execution of such will on Monday, the testatrix died early on the
morning of the following Wednesday.
(3) That, as a preliminary act, a rough copy of the said will was made up, which rough
copy was read to the testatrix, and the latter ordered an additional clause to be added
thereto, in connection with a legacy that she desired to make in favor of some of her
old servants who and rendered good service.
(4) That, after the rough copy was amended by the addition of the above-mentioned
clause, a clear copy thereof was made up and was again read to the testatrix, who
approved it in all of its parts, and as she was unable to sign, she requested Amando
de Ocampo to sign for her and the latter wrote the following words with his own hand.
"At the request of the testatrix D.a Simplicia de los Santos, I signed Amando de
Ocampo." Immediately afterwards and also in the presence of the same testatrux and
of each other, the witnesses Jose Juico, Gabino Panopio, Eusebio dayao, Juan
Angeles, Jose Torres, Alejo San Pedro, and Gregorio Sangil signed at the bottom of
the will.

March 22, 1910

GREGORIO MACAPINLAC, petitioner-appellee,

vs.
MARIANO ALIMURONG, opponent-appellant.

5 | Page

Mapa,

ARELLANO, C. J.:

In view of the said factsthe lower court concludesthe will executed by Simplicia de
los Santos must be admitted to probate. The provisions of section 618 of the Code of
Procedure in Civil Actions and Special Proceedings are fully complied with. The will
bears the name of the testatrix written by Amando de Ocampo in her presence and by

her express direction, and has been witnessed and signed by more than three
trustworthy witnesses, in the presence of the testatrix and of each other.

At the request of the testatrix, Da. Simplicia de los Santos, I signed.

For Simplicia de los Santos.

Amando de Ocampo.

The judgment was as follows:

It is ordered that exhibit No. 1, duly translated, be probated as the last will of Simplicia
de los Santos and that the corresponding letters of administration be issued in favor of
Gregorio Macapinlac, the surviving husband of the said Simplicia de los Santos, the
protest of the adverse party being dismissed, with the costs.
The opponent appealed, and the appeal having been submitted to this court, together with the
allegations of both parties, it appears that the appellant has alleged the following assignments of
error:
1 That the proceedings were not dismissed, because the witnesses for the petitioner did not sign
their respective testimony.
2 That it was declared that the will of the deceased Simplicia de los Santos was executed with a
legal formalities.
3 That it was not declared that the will of the deceased Simplicia de los Santos was executed
under undue and illegal influence on the part of the persons benefited thereby or of a person
acting in their interests.
With reference to the first assignment of error, inasmuch as no question was raised in the first
instance in the form of a motion and denied by the court below and exception taken and brought
up on appeal, there is no ground on which we may take into consideration such assignment and
decide a matter not covered by the appeal and with reference to which a decision by this court is
not properly sought.
In regard to the second assignment, in view of the facts set forth and of the findings made by the
trial court, according to the preponderance of the evidence, it can not be rationally shown that
the conclusion should have been otherwise, nor does it appear that the conclusion infringes any
statute or legal doctrine for the enforcement of which this court should review the evidence.
But, besides the question of fact, the appellant submit another question of law, viz, whether or
not the will was signed in accordance with the law, and he affirms that it was not, inasmuch as
the law requires that when a person signs in place of the testator he should write the name of
the latter in the will as the signature; this was not done by Amando de Ocampo in the will in
question, as he did not sign it with the name of testatrix.
It is shown by the evidence that the will was wholly written in the handwriting of the subscribing
witness, Gregorio Sangil, and at the foot thereof the following words appear in a new paragraph
and sufficiently apart:

6 | Page

As a question of fact, the authenticity of the words "For Simplicia de los Santos," prefixed to the
signature, is impugned as not having been written at the time of the execution of the will.
And, as a question of law, it is claimed that the form of signing for the testatrix "At the request of
the testatrix Da. Simplicio de los Santos, I signed: Amando de Ocampo," is not in accordance
with the requirements of the law.
Regarding the first question, the trial court concluded that "the posterior insertion of the words
'For Simplicia de los Santos' can not affect the validity of the will."
Therefore, it can be considered as nonexistent, and the other as the only fore of signature by the
testatrix, the authenticity of which has not been impugned or which the trial court admits as
conclusive, and is only one taken into account in its findings of fact. 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 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.
With reference to the third assignment of error, the court below found:
. . . and the influence which, according to the adverse party, was exercised upon the
testatrix by Father Lupo is not shown. While the rough copy of the will was being
made, Father Lupo simply discussed with those who were making the rough draft the
question of the more appropriate use of some phrases inPampango. It is true that he
went in and out of the room of the testatrix several times, and that from time to time he
showed a relic to her, but there is no evidence to indicate that Father Lupo influenced
the testatrix directly and caused her to be influenced in any way.
Against this finding of fact, based upon the preponderance of the evidence as weighed by the
trial court, we find no reason or ground for deciding this question of fact in any other way. We
find no data showing that the person above mentioned directly influenced the provisions of the
will; that such is the illegal and improper influence which the law condemns as overcoming that
freedom by which the last will of a man must be expressed.
The judgment appealed from is hereby affirmed, with the costs of this instance against the
appellant. So ordered.
Torres, Johnson, Carson and Moreland, JJ., concur.

G.R. No. L-3907

March 12, 1908

ROMAN ABAYA, petitioner-appellant,

vs.
DONATA ZALAMERO, respondent-appellee
TORRES, J.:
On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna,
for the allowance of the will executed by Juan Zalamero, a resident of Pagsanhan, in said
province, on the 29th of October, 1905, and produced in court the said will, which was written in
Tagalog dialect. Donata Zalamero opposed the petition, alleging that the will had been executed
under pressure and unlawful and improper influence on the part of those who were to benefit
thereby, and that it had not been executed and signed in accordance with the provisions of
section 618 of the Code of Civil Procedure. A day was appointed for the hearing and in the
course of the proceedings the witnesses offered by both parties were examined; on the 10th of
January, 1907, the court refused to admit the will of said Juan Zalamero, as requested by
Roman Abaya; Abaya appealed from the decision and moved for a new trial which motion has
not been finally acted upon by the court; for this reason the petitioner, now before this court, still
insists thereon for the effects of the appeal which he had interposed, and has submitted a
certified copy of the proceedings to which the assignment of errors presented by him refers.
Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the
29th of October, 1905, under lawful pressure and influence exercised by those who were
thereby benefited; and second, that the said will was not executed and signed in accordance
with the provisions of section 618 of the Code of Civil Procedure.
After an examination of the facts alleged and the evidence adduced by both parties, and
considering the case according to the rules of common sense and sound criticism, it must
necessarily be admitted that the weight and preponderance of the evidence prove in a
conclusive manner the authenticity and genuineness of the said will as the real and true
expression of the will of the testator, Juan Zalamero, and for this reason the first point should
have been decided by the court below in a negative sense.
It was not expressly pretended that the said will should be disallowed under the provisions of
section 634 of the Code of Civil Procedure, either because the testator was insane or otherwise
mentally incapable to execute such instrument at the time of its execution, or because it was
procured by undue and improper pressure and influence on the part of the beneficiaries; nor
even if such request had been made, could the nullity of the said will have been judicially
declared in view of the lack of satisfactory proof of the presence of such circumstances.
Therefore, the court, in order to disallow the petition, had to disregard them and rest the decision
upon the allegation that the will was not executed in accordance with the provisions of section
618 of the Code of Civil Procedure.

7 | Page

Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in
question was executed with the requirements established by the law in force, and that, therefore,
the decision upon the second point should be against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator
and at his own request, one of the witnesses to the will, Mariano Zaguirre, wrote with his own
hand the name and surname of Juan Zalamero, the testator, and his presence, and that the
latter put a cross between them and a note stating that what had been written before the name
and surname of the said Juan Zalamero, with the cross placed at the foot thereof, was his
testament and contained his last will as stated by him when he directed the execution thereof in
the presence of the three witnesses who subscribed it in his presence, and in the presence of
each other.
It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name
and surname at the end of his will, did not affix his own signature immediately below the name
and surname of Juan Zalamero and below the cross placed by the latter with the words "by
request of the testator Juan Zalamero;" but in the said will are clearly stated the reason why it
was not signed by the testator himself as also the request he made to the witness Zaguirre, and
a repetition thereof was not necessary; further, that this same witness, upon being requested,
wrote with his own hand the name and surname of the testator, who afterwards placed the cross
between them, stating that it was his statement, all of which was written immediately after the
said name and surname of the testator and the cross made by him, and the same was
subscribed by the three witnesses in the manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the law have been
complied with, namely, that three witnesses were present at the execution of the will of Juan
Zalamero at the date mentioned therein; that they heard his statement that the said instrument,
written and drawn up under his direction, contained his last will; that they saw and witnessed
when, at the express request of the testator, and under his direction, the witness, Mariano
Zaguirre, wrote at the foot of the will the name and surname of Juan Zalamero, and when the
latter put the cross between his written name and surname, each of the witnesses subscribing it
at the time and in the presence of each other.
For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should
be reversed and that it be declared, as we now do, that the will executed by the late Juan
Zalamero while in life, under date of the 29th of October, 1905, was executed in accordance with
the law, and that therefore it should be duly admitted in order that it may produce all consequent
legal effects, and it is so ordered without any special ruling as to costs.
Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.

G.R. No. 1708

August 24, 1905

EX PARTE PEDRO ARCENAS, FELISBERTA ACEVEDO, ET AL.

Probate Proceedings.

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 also be done if any one of the witnesses can not sign.
TORRES, J.:
On October 12, 1901, before Felipe Villasis y Castaeda, a notary public of the municipality of
Capiz, and in the presence of three witnesses, residents thereof, Jose de los Santos e Isada,
also a resident of that city, executed his last will and testament, and to this effect exhibited to the
notary and attesting witnesses a private document purporting to be his last will, and stated that
he wished to acknowledge it as such; but the said testator, on account of his ill health, did not
sign the same, and at his own request the witness Naval Amisola Vidal y Reyes signed in his
stead. The other witnesses and the notary public also signed the testament.
Subsequently Pedro Arcenas, one of the executors under the said will, presented the same for
probate, the usual proceedings were had in the Court of First Instance, and notwithstanding the
fact that the parties interested were cited, no one appeared to oppose the probating of the said
will. Sandalio Garcia and Andres Protasio, two of the witnesses to the will, were examined. They
testified under oath that the testator had voluntarily executed the same but on account of his ill
health did not sign, the witness Naval A. Vidal signing in his stead at the testator's request; they
further testified that the attesting witnesses had signed the will in the presence of each other. At
this stage of the proceedings the clerk presented to the judge the register of public instruments
for the year 1901, where the original of the said will was recorded.
The two heirs named in the will, to wit, Felisberta and Jose Acevedo, petitioned the court on the
28th day of September, 1902, to examine the notary Villasis, and the witness Naval Amisola
Vidal as to the authenticity of the will itself, but the court, without passing upon this petition, in a
decision rendered October 1, 1903, disallowed the said will on the ground that it was not signed
by the testator Jose de los Santos, nor by the testator's name written by Naval A. Vidal, as
required by section 618 of the Code of Civil Procedure, and could not, therefore, be considered
as the last will and testament of the said Jose de los Santos. From this decision the said heirs
appealed to this court.
The Code of Civil Procedure went into effect on the 1st day of October, 1901, as provided, in Act
No. 212 of the Philippine Commission, approved August 31, 1901, so that the said Code of Civil
Procedure was in full force and effect on the 12th day of October of the same year when the will
in question was executed by the testator, Jose de los Santos e Isada, who, as well as all the
citizens of the Philippines Islands, was obliged to conform in the execution of wills with the law
governing the subject.
Section 618 of the Code of Civil Procedure, which relates to the requisites of will, repealed,
among others article 695 of the Civil Code, the second paragraph of which reads as follows:

8 | Page

This provision of the Civil Code has been expressly modified by the provisions of section 618 of
the Code of Civil Procedure, 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. The attestation shall state
the fact that the testator signed the will, or caused it to be signed by some other
person, at his express direction, in the presence of three witnesses, and that they
attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that
the will was in fact signed and attested as in this section provided.
The foregoing is, in the opinion of the American members of this court, a correct translation of
the English text of the section quoted.
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where
the testator does not know how, or is unable, to sign, it will not be sufficient that one of the
attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person signing in
his stead in the place where he would have signed if he knew how or was able so to do, and this
in the testator's presence and by his express direction; so that a will signed in a manner different
than that prescribed by law shall not be valid and will not be allowed to be probated.
Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall
be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By
the testator, John Doe, Richard Roe." All this must be written by the witness signing at the
request of the testator.
The English text of the before-mentioned section 618 of the Code of Civil Procedure is clear, this
section not having been modified since the promulgation of the said code, and if the Spanish
translation of said code was incorrect in the first two editions it has at last been corrected in a
third edition thereof, and, in our opinion, the correct Spanish translation of the said section is as
quoted in this decision.
There is lacking in the testament in question an essential requisite which affects its validity, the
omission of which can not be excused by the erroneous translation in the first two editions of the
said code, which translation is not such as would justify a failure to comply with its provisions,
since Act No. 63 of the Philippine Commission, approved December 21, 1900, provides that in

the construction of all acts which have been enacted, or shall be enacted, by that legislative
body the English text shall govern, except that in obvious cases of ambiguity, omission, or
mistake the Spanish text may be consulted to explain the English text. In this case the English
text is clear and, in the opinion of the American members of this court, there is no ambiguity,
omission, or mistake which would require a consultation of the Spanish text to explain it.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the
bottom of the will the full name of the testator and his own name in one of the forms given
above. He did not do so, however, and this failure to comply with the law is a substantial defect
which affects the validity of the will and precludes its allowance, notwithstanding the fact that no
one appeared to oppose it.

For
Fructuoso Llenaresa.

Pascuala

Olaguer,

The judge below was of the opinion that this manner of writing the name of the testatrix is not in
accordance with the law, and this was his only reason for refusing the probate of the will,
because, as he says, "it is always better that, where a testator can not sign his name, the person
signing for him should only write the name of the testator, and that the latter should make a
cross which should be witnessed and attested by the witnesses to the act."
Section 618 of the Code of Procedure in Civil Actions, which prescribes the form of the
execution of wills, provides in part as follows:

The trail court states in its decision that from the evidence introduced the court is convince that
the document in question contained the last will of the deceased as to the disposition of his
property; but no decision in this case would be proper unless in strict accordance with the law,
no matter how harsh such decision may be. The allowance of this defective will would be a
violation of the law.

No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be in writing and signed by
the testator, or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other.

The judgment appealed from should be affirmed and the will in question, executed at Capiz on
the 12th of October, 1901, by the deceased, Jose de los Santas e Isada, is hereby disallowed.
After the expiration of twenty days judgment shall be entered accordingly and the case
remanded to the Court of First Instance for proceedings in conformity herewith. So ordered.

As will be seen, the law does not prescribe the specific form in which the name of the testator
should be affixed at the foot of the will when written at his request by another person. The only
thing required by law is that the will shall be bear the name of the testator. In construing this
legal provision this court has held and established in case No. 1708, Ex parte Pedro Arcenas et
al. (4 Phil. Rep., 700), that "where a testator does not know how, or is unable for any reason, to
sign the will himself, it shall be signed in the following manner: 'John Doe, by the testator,
Richard Roe;' or in this form: 'By the testator, John Doe, Richard Roe.' "

Arellano,
C.J.,
Mapa,
Willard, J., did not sit in this case.

G.R. No. L-4454

Johnson

and

Carson,

JJ., concur.

April 12, 1909

Ex parte JUAN ONDEVILLA, ET AL., petitioners-appellants.

MAPA, J.:
These proceedings were instituted for the probate of the will of Pascuala Olaguer, deceased.
The lower court refused the probate and from that decision the petitioners have appealed to this
court.
There is no doubt that the testament in question was executed before a sufficient number of
witnesses. This was acknowledged to be true in the decision appealed from. The only matter at
issue is the sufficiency of form in which the name of the testatrix appears at the foot of the will.
The testatrix could not sign at the time she executed the will and requested one named
Fructuoso Llenaresa to sign on her behalf, which the latter did by writing her name and signing
at the foot of the document as follows:

9 | Page

This last form is precisely the one which has been used in the will in question, with the exception
of the words the testator which were omitted. It is unnecessary to say that such omission does
not nor can it in anyway affect the validity of the will, because the essential thing is the name of
the testator, which name, we hold, was duly written in the aforesaid will.
The order appealed from is reversed, and the will is hereby declared valid and ordered admitted
to probate. So ordered.
Arellano, C. J., and Torres, J., concur.

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.

GUTIERREZ, JR. J.:

The petitioner decided to file the present petition.

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.

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

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.

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.

Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the
same order, the petitioner was also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken
as a result of the disallowance of the will. He also asked that the ten-day period required by the
court to submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal.
The said motions or incidents were still pending resolution when respondent Judge Avelino S.
Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion 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.

10 | P a g e

Article 805 of the Civil Code provides:

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the lacier witnesses
and signed the will and the pages thereof in the presence of the testator and
of one another.
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial
will to be valid, it is not enough that only the testatrix signs at the "end" but an the three
subscribing witnesses must also sign at the same place 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, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient
to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case
when the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing
witness Vicente Timkang to be the same will executed by the testatrix. There was no question of
fraud or substitution behind the questioned order.

11 | P a g e

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 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.
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.

March 9, 1909

MAMERTO GILLESANIA, ET AL., plaintiffs-appellants,

vs.
NICOLAS MENASALVAS, ET AL., defendants-appellees.
Salas
and
Soncuya
Carlos Ledesma and Andres Jayme for appellees.

for

appellants.

JOHNSON, J.:
On the 27th day of June, 1903, Graciano Fadrigon executed his last will and testament. On the
5th day of November, 1905, the said Fadrigon died. Later the said will was presented to the
Court of First Instance of the Province of Antique for probate. The probation of the will was
opposed by some of the relatives of the deceased. The opposition seems to be based upon two
grounds:
First. That the witnesses who signed the will did not all sign in the presence of the testator and in
the presence of each other as required by section 618 of the Code of Procedure in Civil Actions;
and
Second. That the said testator was mentally incapable of making said will at the time the same
was authorized and made.
In the month of November, 1906, the court heard the evidence pro and con offered upon the
question whether the will should be admitted to probate or not. After hearing the evidence the
lower court denied the probation of said will. From this decision of the lower court the petitioners
appealed assigning the following errors:

12 | P a g e

2. In holding that, on account of the lack of education on the part of Graciano

Fadrigon, it is not credible that he could dictate the provisions contained in the will
wherein the situation, extension, and boundaries are described, considering the size
and number of said properties, without having before him the documents of
ownership.
3. In holding that the will executed by the late Graciano Fadrigon should not be
admitted to probate.

SO ORDERED.

G.R. No. L-4202

1. In holding that the will of Graciano Fadrigon was not executed in accordance with
the provisions of section 618 of the Code of Civil Procedure, because one of the
witnesses did not see the other five sign, and because some witnesses made
contradictory statements with respect to facts which could not be unknown to the
others.

With reference to the first above assignment of error, an examination of the will shows that it was
signed by six witnesses. Said section 618 only requires that wills be signed by three persons, in
the presence of the testator and in the presence of each other. An examination of the evidence
shows that each of the six persons who signed the said will were examined as witnesses and it
appears, beyond peradventure of doubt, that five of the six witnesses signed the said will at the
request of the testator, in the presence of the testator and in the presence of each other. It is true
that one of the witnesses, Mateo Mena, who was the first witness to sign the will, immediately
left the room where the will was executed, and did not see the other witnesses sign the said will.
We are of the opinion and so hold that, when three of all the witnesses who signed the will,
signed at the request of the testator and in his presence and in the presence of each other, the
requirements of the law were thereby complied with. The mere fact that there were six witnesses
to the said will and that one of them did not see the others sign is not sufficient to invalidate the
said will when the other requirements of the law are satisfied.
With reference to the second above assignment of error, while the evidence is somewhat
conflicting, yet all of the persons who signed the said will as witnesses, declared that the testator
at the time of the execution of the said will was of sound mind and memory. There is no
evidence to show that the witnesses to the will had any interest in the result of the will nor any
motive in declaring other than the truth with reference to the questions presented to them.
Having arrived at the conclusion that the will was executed in due form, complying with the
requirements of the law, and the testator had full capacity to execute the said will, we must
declare that the lower court committed an error in not admitting the said will to probate. The
judgment or order of the lower court refusing to admit the said will to probate is hereby reversed,
and it is hereby ordered that said cause be returned to the lower court with direction that an
order be entered admitting said will to probate in accordance herewith. So ordered.
Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.

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.

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. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the
Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses in
the presence of the testator and of each other, considering that the three attesting witnesses
must appear before the notary public to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is that only two witnesses appeared before
the notary public to acknowledge the will. On the other hand, private respondent-appellee,
Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial
court, maintains that there is substantial compliance with the legal requirement of having at least
three attesting witnesses even if the notary public acted as one of them, bolstering up his stand
with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath rather
than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of
the appellant that the last will and testament in question was not executed in accordance with

13 | P a g e

law. The notary public before whom the will was acknowledged cannot be considered as the
third instrumental witness since he cannot acknowledge before himself his having signed the
will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v.
Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front
or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the
notary public himself, he would have to avow assent, or admit his having signed the will in front
of himself. This cannot be done because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral 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 acknowledgingwitnesses. 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.

G.R. No. 17857

June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.

PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.

VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was residing in the
municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an
attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921,
and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of
First Instance of Laguna on the 19th of January of the same year an application for the probate
of the will and the issuance of the proper letters of administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia
Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not
executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively
in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the
witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered
the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents
contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief they
assign three errors, which, in their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its finding to the
effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all
the solemnities required by the law.

14 | P a g e

The arguments advanced by appellants' counsel in support of the first assignment of error tend
to impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea.
We have made a careful examination of the evidence, but have not found anything that would
justify us in disturbing the finding of the courta quo. The attesting witnesses, Eugenio Zalamea
and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de
Jesus, they did sign each and every page of the will and of the inventory in the presence of each
other and of the testatrix, as the latter did likewise sign all the pages of the will and of the
inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not signed by the
testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of July,
1918, basing their contention on the testimony of Aurelio Palileo, who says that on one occasion
Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses,
nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by
Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's
testimony cannot prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio
Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for having made a sworn
declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of this case, to
the effect that he was really one of the witnesses to the will in question, which fact was
corroborated by himself at the trial. The appellants take Zalamea's testimony in connection with
the dismissal of a criminal case against a nephew of his, in whose success he was interested,
and infer from this fact the partiality of his testimony. We deem this allegation of little importance
to impeach the credibility of the witness Zalamea, especially because his testimony is
corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who
had prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to
conclude that the first assignment of error made by the appellants is groundless.
The appellants contend that the court below erred in admitting the will to probate
notwithstanding the omission of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had
necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have
witnessed the execution of the will, for there were reasonable grounds to believe that said
witness was openly hostile to the proponent, inasmuch as since the announcement of the trial of
the petition for the probate of the will, said witness has been in frequent communication with the
contestants and their attorney, and has refused to hold any conference with the attorneys for the
proponent. In reply to this, the attorney for the contestants, said to the court, "without discussing
for the present whether or not in view of those facts (the facts mentioned by the attorneys for the
petitioner), in the hypothesis that the same are proven, they are relieved from producing that
witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is
hostile does not justify a party to omit his testimony; without discussing this, I say, I move that
said statement be stricken out, and if the proponent wants these facts to stand to stand in the
record, let him prove them." The court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take any exception.

In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this court, in
deciding the question whether a will can be admitted to probate, where opposition is made, upon
the proof of a single attesting witness, without producing or accounting for the absence of the
other two, it was said; "while it is undoubtedly true that an uncontested will may be proved by the
testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses must be examined, if
alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had been pending from December
21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest
was entered until the very day set for the hearing; and it is probable that the attorney
for the proponent, believing in good faith that probate would not be contested,
repaired to the court with only one of the three attesting witnesses at hand, and upon
finding that the will was contested, incautiously permitted the case to go to proof
without asking for a postponement of the trial in order that he might produce all the
attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it
does not in itself supply any basis for changing the rule expounded in the case above
referred to; and were it not for a fact now to be mentioned, this court would probably
be compelled to reverse this case on the ground that the execution of the will had not
been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court
either upon the submission of the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for t he first time in this court. We
believe this point is well taken, and the first assignment of error must be declared not
to be well taken. This exact question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and we see no reason why the
same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335,
337.)
There are at least two reasons why the appellate tribunals are disinclined to permit
certain questions to be raised for the first time in the second instance. In the first place
it eliminates the judicial criterion of the Court of First Instance upon the point there
presented and makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial. In the second
place, it permits, if it does not encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their opponent the actual point upon
which reliance is placed, while they are engaged in other discussions more simulated
than real. These considerations are, we think, decisive.

15 | P a g e

In ruling upon the point above presented we do not wish to be understood as laying
down any hard and fast rule that would prove an embarrassment to this court in the
administration of justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is necessary if this
court is to contribute the part due from it in the correct decision of the cases brought
before it. What we mean to declare is that when we believe that substantial justice has
been done in the Court of First Instance, and the point relied on for reversal in this
court appears to be one which ought properly to have been presented in that court, we
will in the exercise of a sound discretion ignore such question upon appeal; and this is
the more proper when the question relates to a defect which might have been cured in
the Court of First Instance if attention had been called to it there. In the present case,
if the appellant had raised this question in the lower court, either at the hearing or
upon a motion for a new trial, that court would have had the power, and it would have
been its duty, considering the tardy institution of the contest, to have granted a new
trial in order that all the witnesses to the will might be brought into court. But instead of
thus calling the error to the attention of the court and his adversary, the point is first
raised by the appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless subsequently failed without any
apparent reason to take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessar to prove the will was
in issue in the lower court.
In the case at bar, we do not think this question properly to have been raised at the trial, but in
the memorandum submitted by the attorney for the appellants to the trial court, he contended
that the will could not be admitted to probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this witness raises a presumption against the
pretension of the proponent. The trial court found that the evidence introduced by the proponent,
consisting of the testimony of the two attesting witnesses and the other witness who was present
at the execution, and had charge of the preparation of the will and the inventory, Exhibits A and
A-1, was sufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, where
opposition is made to the probate of a will, the attesting witnesses must be produced. But there
are exceptions to this rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or he appears hostile to the
cause of the proponent. In such cases, the will may be admitted to probate without the testimony
of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will
has been duly executed. Wherefore, we find that the non-production of the attesting witness,
Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render
void the decree of the court a quo, allowing the probate.

But supposing that said witness, when cited, had testified adversely to the application, this would
not by itself have change the result reached by the court a quo, for section 632 of the Code of
Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more
witnesses do not remember having attested it, provided the court is satisfied upon the evidence
adduced that the will has been executed and signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of the inventory,
Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is
made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the
bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have likewise signed
the inventory attached to this will composed of ten folios in the presence of Messrs.
Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan,
Laguna, Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto we have
affixed our signatures, as well as the inventory of the properties of Doa Josefa
Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latter affixed
her name to the last, and each and every page of this will and inventory composed of
ten folios in our presence; and she declared this to be her last will and testament and
at her request we have affixed hereunto our respective signatures in her presence and
in the presence of each other as witnesses to the will and the inventory this 19th of
July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of it, we find that
the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires
this solemnity for the validity of a will, and makes unnecessary any other attestation clause at
the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine
announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that
case the validity of the will was assailed on the ground that its folios were paged with the letters
A, B, C, etc., instead of with the letters "one," two," "three," etc. It was held that this way of
numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one

16 | P a g e

of these methods indicates the correlation of the pages and serves to prevent the abstraction of
any of them. In the course of the decision, we said: "It might be said that the object of the law in
requiring that the paging be made in letters is to make falsification more difficult, but it should be
noted that since all the pages of the testament are signed at the margin by the testatrix and the
witnesses, the difficulty of forging the signatures in either case remains the same. In other words
the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make
for the easiness to forge the signatures. And as in the present case there exists the guaranty of
the authenticity of the testament, consisting in the signatures on the left margins of the
testament and the paging thereof as declared in the attestation clause, the holding of this court
in Abangan vs. Abangan (40 Phil., 476), might as well be repeated:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless, and frustrative of the testator's last will, must be disregarded."
In that case the testament was written on one page, and the attestation clause on another.
Neither one of these pages was numbered in any way, and it was held: "In a will consisting of
two sheets the first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses, and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged."
This means that, according to the particular case, the emission of paging does not necessarily
render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the upper part
of the sheet, but if the paging should be placed in the lower part, would the testament be void for
this sole reason? We believe not. The law also provides that the testator and the witnesses must
sign the left margin of each of the sheets of the testament; but if they should sign on the right
margin, would this fact also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the instrumental witnesses shall
sign their names on the left margin of each and every page; and it is undeniable that
the general doctrine is to the effect that all statutory requirements as to the execution
of wills must be fully complied with. The same execution for wills must be fully
complied with. The same doctrine is also deducible from cases heretofore decided by
this court."

"Still some details at time creep into legislative enactments which are so trivial that it
would be absurd to suppose that the Legislature could have attached any decisive
importance to them. The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page rather than on the margin
seems to be of this character. So far as concerns the authentication of the will, and
of every part thereof, it can make no possible difference whether the names appear on
the left or on the right margin, provided they are on one or the other. In Craig vs.
Tatlonghari (G. R. No. 12558, decided March 23, 1918, not reported), this court
declared a will void which was totally lacking in the signatures required to be written
on its several pages; and in the case of Re Estate of Saguinsin (41 Phil., 875) a will
was likewise declared void which contained the necessary signatures on the margin of
each leaf (folio), but not in the margin of each page containing written matter."

17 | P a g e

We do not desire to intimate that the numbering in letters is a requisite of no importance. But
since its principal object is to give the correlation of the pages, we hold that his object may be
attained by writing one, two, three, etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should not be applied where the paging is in Arabic
numerals, instead of in letters, as in the inventory in question. So that, adhering to the view
taken by this court in the case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with
regard to the appreciation of the solemnities of a will, we find that the judgement appealed from
should be, as is hereby, affirmed with the costs against the appellants. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand, Johns and Romualdez, JJ., concur.