No.L-32213. November 26, 1973.

* objection, the Court allowed the probate of the

AGAPITA N. CRUZ, petitioner, vs. HON. said last will and testament. Hence this appeal by
JUDGE GUILLERMO P. VILLASOR, Presiding certiorari which was given due course.
Judge of Branch I, Court of First Instance of The only question presented for determination,
Cebu, and MANUEL B. LUGAY, respondents. on which the decision of the case hinges, is
whether the supposed last will and testament of
Succession; Wills; Formal
Valente Z. Cruz (Exhibit “E”) was executed in
requirements; Acknowledging officer cannot serve as
witness at the same time.—The notary public before accordance with law, particularly Articles 805
whom the will was acknowledged cannot be and 806 of the new Civil Code, the first requiring
considered as the third instrumental witness since he at least three credible witnesses to attest and
cannot acknowledge before himself his having signed subscribe to the will, and the second requiring the
the will. To acknowledge before means to avow; to testator and the witnesses to acknowledge the will
own as genuine, to assent, to admit, and “before” before a notary public.
means in front or preceding in space or ahead of. Of the three instrumental witnesses thereto,
Consequently, if the third witness were the notary namely, Deogracias T. Jamaoas, Jr., Dr. Francisco
public himself, he would have to avow, assent or Pañares, and Atty. Angel H. Teves, Jr., one of
admit his having signed the will in front of himself. them, the last named, is at the same
This cannot be done because he cannot split his 33
personality into two so that one will appear before the
VOL. 54, NOVEMBER 26, 1973 33
other to acknowledge his participation in the making
of the will. Cruz vs. Villasor
Notary public; Function of office of notary time the Notary Public before whom the will was
public.—The function of a notary public is, among supposed to have been acknowledged. Reduced to
others, to guard against any illegal or immoral simpler terms, the question was attested and
arrangements. That function would be defeated if the subscribed by at least three credible witnesses in
notary public were one of the attesting witnesses. For the presence of the testator and of each other,
then he would be interested in sustaining the validity considering that the three attesting witnesses must
of the will as it directly appear before the notary public to acknowledge
_______________
the same. As the third witness is the notary public
 FIRST DIVISION.
*
himself, petitioner argues that the result is that
32
only two witnesses appeared before the notary
public to acknowledge the will. On the other
3 SUPREME COURT hand, private respondent-appellee, Manuel B.
2 REPORTS ANNOTATED Lugay, who is the supposed executor of the will,
Cruz vs. Villasor following the reasoning of the trial court,
involves himself and the validity of his own act. maintains that there is substantial compliance
It would place him in an inconsistent position and the with the legal requirement of having at least three
very purpose of the acknowledgment, which is to attesting witnesses even if the notary public acted
minimize fraud would be thwarted. as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as
PETITION for review by certiorari of a judgment pertinent, reads as follows:
of the Court of First Instance of Cebu. “It is said that there are practical reasons for
upholding a will as against the purely technical reason
The facts are stated in the opinion of the Court. that one of the witnesses required by law signed as
     Paul G. Gorrez for petitioner. certifying to an acknowledgment of the testator’s
     Mario D. Ortiz for respondent Manuel B. signature under oath rather than as attesting the
Lugay. execution of the instrument.”
After weighing the merits of the conflicting
ESGUERRA, J.:
claims of the parties, We are inclined to sustain
Petition to review on certiorari the judgment of that of the appellant that the last will and
the Court of First Instance of Cebu allowing the testament in question was not executed in
probate of the last will and testament of the late accordance with law. The notary public before
Valente Z. Cruz. Petitioner-appellant Agapita N. whom the will was acknowledged cannot be
Cruz, the surviving spouse of the said deceased, considered as the third instrumental witness since
opposed the allowance of the will (Exhibit he cannot acknowledge before himself his having
“E”), alleging that the will was executed through signed the will. To acknowledge before means to
fraud, deceit, misrepresentation and undue avow (Javellana v. Ledesma, 97 Phil. 258,
influence; that the said instrument was executed 262; Castro v. Castro, 100 Phil. 239, 247); to own
without the testator having been fully informed of as genuine, to assent, to admit; and “before”
the contents thereof, particularly as to what means in front or preceding in space or ahead of.
properties he was disposing; and that the (The New Webster Encyclopedic Dictionary of
supposed last will and testament was not executed the English Language, p. 72; Funk & Wagnalls
in accordance with law. Notwithstanding her New Standard Dictionary of the English
Language, p. 252; Webster’s New International be in contravention of the provisions of Article
Dictionary 2d. p. 245.) Consequently, if the third 805
witness were the notary public himself, he would 35
have to avow, assent, or admit his having signed VOL. 54, NOVEMBER 26, 1973 35
the will in front of himself. This cannot be done Cruz vs. Villasor
because he cannot split his personality into two so requiring at least three credible witnesses to act as
that one will appear before the other to such and of Article 806 which requires that the
acknowledge his participation in the making of testator and the required number of witnesses
the will. To permit such a must appear before the notary public to
34 acknowledge the will. The result would be, as has
3 SUPREME COURT REPORTS been said, that only two witnesses appeared
4 ANNOTATED before the notary public for that purpose. In the
Cruz vs. Villasor circumstances, the law would not be duly
situation to obtain would be sanctioning a sheer observed.
absurdity. FOR ALL THE FOREGOING, the judgment
Furthermore, the function of a notary public is, appealed from is hereby reversed and the probate
among others, to guard against any illegal or of the last will and testament of Valente Z. Cruz
immoral arrangements. Balinon v. De Leon, 50 (Exhibit “E”) is declared not valid and hereby set
O. G. 583.) That function would be defeated if the aside.
notary public were one of the attesting or Cost against the appellee.
instrumental witnesses. For them he would be      Makalintal, C.
interested in sustaining the validity of the will as J., Castro, Teehankee, Makasiar and Muñoz
it directly involves himself and the validity of his Palma, JJ., concur.
own act. It would place him in an inconsistent
Judgment reversed.
position and the very purpose of the
Notes.—Acknowledgment of Will Before
acknowledgment, which is to minimize fraud
Notary Public. The requirement of Arts. 805 and
(Report of the Code Commission p. 106-107),
806 of the new Civil Code that every will be
would be thwarted.
acknowledged before a notary public by the
Admittedly, there are American precedents
testator and the witnesses, and that the latter must
holding that a notary public may, in addition, act
avow to the certifying officer the authenticity of
as a witness to the execution of the document he
their signatures, etc., is sufficiently complied with
has notarized. (Mahilum v. Court of Appeals, 64
where the avowal is duly made at the time of
O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
execution of the will, and it is immaterial that the
130). There are others holding that his signing
notary’s signing and sealing of the certification is
merely as a notary in a will nonetheless makes
done later, at his own office. Re Estate of
him a witness thereunder (Ferguson v. Ferguson,
Ledesma, L-7179, June 30, 1955.
47 S. E. 2d. 346; In Re Douglas’ Will, 83 N. Y. S.
The requirement of Art. 806 of the new Civil
2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
Code that a will be “acknowledged” before a
911, Tyson v. Utterback, 122 So. 496; In Re
notary means only that it must be assented to,
Baybee’s Estate 160 N. W. 900; Merill v. Boal,
avowed, or admitted before such officer. It does
132 A. 721; See also Trenwith v. Smallwood, 15
not require raising of the right hand or any
So. 1030). But these authorities do not serve the
particular ceremony, if the testator’s signature is
purpose of the law in this jurisdiction or are not
affixed in the notary’s presence. De Castro vs. De
decisive of the issue herein, because the notaries
Castro, L-8996, October 31, 1956.
public and witnesses referred to in the aforecited
cases merely acted as instrumental, subscribing or ——o0o——
attesting witnesses, and not
as acknowledging witnesses. Here the notary
public acted not only as attesting witness but also
as 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.” [Underscoring supplied]
To allow the notary public to act as third witness,
or one of the attesting and acknowledging
witnesses, would have the effect of having only
two attesting witnesses to the will which would