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    22 - Cruz vs. Villasor

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    vince005
    The Supreme Court ruled that the notary public who acknowledged the will could not also serve as one of the three required instrumental witnesses. To do so would violate the formal requirements for will execution under the Civil Code. Specifically, it would mean that only two witnesses appeared before the notary public to acknowledge the will, rather than the required three. The Court also noted that allowing the notary public to serve as a witness would put them in an inconsistent position and undermine the purpose of minimizing fraud in the will acknowledgment process. Therefore, the Court concluded the will was not validly executed under the law.

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    22 - Cruz vs. Villasor

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    vince005
    78 views4 pages
    The Supreme Court ruled that the notary public who acknowledged the will could not also serve as one of the three required instrumental witnesses. To do so would violate the formal requirements for will execution under the Civil Code. Specifically, it would mean that only two witnesses appeared before the notary public to acknowledge the will, rather than the required three. The Court also noted that allowing the notary public to serve as a witness would put them in an inconsistent position and undermine the purpose of minimizing fraud in the will acknowledgment process. Therefore, the Court concluded the will was not validly executed under the law.

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    22_Cruz vs. Villasor

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    The Supreme Court ruled that the notary public who acknowledged the will could not also serve as one of the three required instrumental witnesses. To do so would violate the formal requirements for will execution under the Civil Code. Specifically, it would mean that only two witnesses appeared before the notary public to acknowledge the will, rather than the required three. The Court also noted that allowing the notary public to serve as a witness would put them in an inconsistent position and undermine the purpose of minimizing fraud in the will acknowledgment process. Therefore, the Court concluded the will was not validly executed under the law.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    78 views4 pages

    22 - Cruz vs. Villasor

    Uploaded by

    vince005
    The Supreme Court ruled that the notary public who acknowledged the will could not also serve as one of the three required instrumental witnesses. To do so would violate the formal requirements for will execution under the Civil Code. Specifically, it would mean that only two witnesses appeared before the notary public to acknowledge the will, rather than the required three. The Court also noted that allowing the notary public to serve as a witness would put them in an inconsistent position and undermine the purpose of minimizing fraud in the will acknowledgment process. Therefore, the Court concluded the will was not validly executed under the law.

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    of 4

    No.L-32213. November 26, 1973.

    * 32 SUPREME COURT REPORTS ANNOTATED


    Cruz vs. Villasor
    AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE
    GUILLERMO P. VILLASOR, Presiding Judge of Branch
    involves himself and the validity of his own act. It would place
    I, Court of First Instance of Cebu, and MANUEL B.
    him in an inconsistent position and the very purpose of the
    LUGAY, respondents.
    acknowledgment, which is to minimize fraud would be
    thwarted.
    Succession; Wills; Formal requirements; Acknowledging
    officer cannot serve as witness at the same time.The notary
    PETITION for review by certiorari of a judgment of the Court
    public before whom the will was acknowledged cannot be
    of First Instance of Cebu.
    considered as the third instrumental witness since he cannot
    acknowledge before himself his having signed the will. To
    The facts are stated in the opinion of the Court.
    acknowledge before means to avow; to own as genuine, to
    assent, to admit, and before means in front or preceding in
    space or ahead of. Consequently, if the third witness were the Paul G. Gorrez for petitioner.
    notary public himself, he would have to avow, assent or admit
    his having signed the will in front of himself. This cannot be Mario D. Ortiz for respondent Manuel B. Lugay.
    done because he cannot split his personality into two so that
    one will appear before the other to acknowledge his ESGUERRA, J.:
    participation in the making of the will.
    Petition to review on certiorari the judgment of the Court of
    Notary public; Function of office of notary public.The First Instance of Cebu allowing the probate of the last will and
    function of a notary public is, among others, to guard against testament of the late Valente Z. Cruz. Petitioner-appellant
    any illegal or immoral arrangements. That function would be Agapita N. Cruz, the surviving spouse of the said deceased,
    defeated if the notary public were one of the attesting opposed the allowance of the will (Exhibit E), alleging that
    witnesses. For then he would be interested in sustaining the the will was executed through fraud, deceit, misrepresentation
    validity of the will as it directly and undue influence; that the said instrument was executed
    without the testator having been fully informed of the contents
    _______________ thereof, particularly as to what properties he was disposing;
    and that the supposed last will and testament was not executed
    *
    FIRST DIVISION. 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.
    32
    The only question presented for determination, on which the with 57 American Jurisprudence, p. 227 which, insofar as
    decision of the case hinges, is whether the supposed last will pertinent, reads as follows:
    and testament of Valente Z. Cruz (Exhibit E) was executed in
    accordance with law, particularly Articles 805 and 806 of the It is said that there are practical reasons for upholding a will
    new Civil Code, the first requiring at least three credible as against the purely technical reason that one of the witnesses
    witnesses to attest and subscribe to the will, and the second required by law signed as certifying to an acknowledgment of
    requiring the testator and the witnesses to acknowledge the will the testators signature under oath rather than as attesting the
    before a notary public. execution of the instrument.

    Of the three instrumental witnesses thereto, namely, After weighing the merits of the conflicting claims of the
    Deogracias T. Jamaoas, Jr., Dr. Francisco Paares, and Atty. parties, We are inclined to sustain that of the appellant that the
    Angel H. Teves, Jr., one of them, the last named, is at the same last will and testament in question was not executed in
    accordance with law. The notary public before whom the will
    33 was acknowledged cannot be considered as the third
    instrumental witness since he cannot acknowledge before
    VOL. 54, NOVEMBER 26, 1973 33 himself his having signed the will. To acknowledge before
    Cruz vs. Villasor 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
    time the Notary Public before whom the will was supposed to space or ahead of. (The New Webster Encyclopedic Dictionary
    have been acknowledged. Reduced to simpler terms, the of the English Language, p. 72; Funk & Wagnalls New
    question was attested and subscribed by at least three credible Standard Dictionary of the English Language, p. 252;
    witnesses in the presence of the testator and of each other, Websters New International Dictionary 2d. p. 245.)
    considering that the three attesting witnesses must appear Consequently, if the third witness were the notary public
    before the notary public to acknowledge the same. As the third himself, he would have to avow, assent, or admit his having
    witness is the notary public himself, petitioner argues that the signed the will in front of himself. This cannot be done because
    result is that only two witnesses appeared before the notary he cannot split his personality into two so that one will appear
    public to acknowledge the will. On the other hand, private before the other to acknowledge his participation in the making
    respondent-appellee, Manuel B. Lugay, who is the supposed of the will. To permit such a
    executor of the will, following the reasoning of the trial court,
    maintains that there is substantial compliance with the legal
    34
    requirement of having at least three attesting witnesses even if
    the notary public acted as one of them, bolstering up his stand
    34 SUPREME COURT REPORTS ANNOTATED
    Cruz vs. Villasor ART. 806. Every will must be acknowledged before a notary
    public by the testator and the witnesses. The notary public shall
    situation to obtain would be sanctioning a sheer absurdity. not be required to retain a copy of the will or file another with
    the office of the Clerk of Court. [Underscoring supplied]
    Furthermore, the function of a notary public is, among others,
    to guard against any illegal or immoral arrangements. Balinon To allow the notary public to act as third witness, or one of the
    v. De Leon, 50 O. G. 583.) That function would be defeated if attesting and acknowledging witnesses, would have the effect
    the notary public were one of the attesting or instrumental of having only two attesting witnesses to the will which would
    witnesses. For them he would be interested in sustaining the be in contravention of the provisions of Article 805
    validity of the will as it directly involves himself and the
    validity of his own act. It would place him in an inconsistent 35
    position and the very purpose of the acknowledgment, which is
    to minimize fraud (Report of the Code Commission p. 106- VOL. 54, NOVEMBER 26, 1973 35
    107), would be thwarted. Cruz vs. Villasor

    Admittedly, there are American precedents holding that a requiring at least three credible witnesses to act as such and of
    notary public may, in addition, act as a witness to the execution Article 806 which requires that the testator and the required
    of the document he has notarized. (Mahilum v. Court of number of witnesses must appear before the notary public to
    Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. acknowledge the will. The result would be, as has been said,
    130). There are others holding that his signing merely as a that only two witnesses appeared before the notary public for
    notary in a will nonetheless makes him a witness thereunder that purpose. In the circumstances, the law would not be duly
    (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, observed.
    83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson
    v. Utterback, 122 So. 496; In Re Baybees Estate 160 N. W. FOR ALL THE FOREGOING, the judgment appealed from is
    900; Merill v. Boal, 132 A. 721; See also Trenwith v. hereby reversed and the probate of the last will and testament
    Smallwood, 15 So. 1030). But these authorities do not serve the of Valente Z. Cruz (Exhibit E) is declared not valid and
    purpose of the law in this jurisdiction or are not decisive of the hereby set aside.
    issue herein, because the notaries public and witnesses referred
    to in the aforecited cases merely acted as instrumental, Cost against the appellee.
    subscribing or attesting witnesses, and not as acknowledging
    witnesses. Here the notary public acted not only as attesting Makalintal, C. J., Castro, Teehankee, Makasiar and Muoz
    witness but also as acknowledging witness, a situation not Palma, JJ., concur.
    envisaged by Article 805 of the Civil Code which reads:
    Judgment reversed.

    Notes.Acknowledgment of Will Before Notary Public. The


    requirement of Arts. 805 and 806 of the new Civil Code that
    every will be acknowledged before a notary public by the
    testator and the witnesses, and that the latter must avow to the
    certifying officer the authenticity of their signatures, etc., is
    sufficiently complied with where the avowal is duly made at
    the time of execution of the will, and it is immaterial that the
    notarys signing and sealing of the certification is done later, at
    his own office. Re Estate of Ledesma, L-7179, June 30, 1955.

    The requirement of Art. 806 of the new Civil Code that a will
    be acknowledged before a notary means only that it must be
    assented to, avowed, or admitted before such officer. It does
    not require raising of the right hand or any particular ceremony,
    if the testators signature is affixed in the notarys presence. De
    Castro vs. De Castro, L-8996, October 31, 1956.

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