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

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO ICASIANO, Petitioner-Appellee, v. NATIVIDAD

ICASIANO and ENRIQUE ICASIANO,Oppositors-Appellants.

SYLLABUS

1. WILLS; PROBATE; POLICY OF COURT AGAINST UNDUE CURTAILMENT OF TESTAMENTARY PRIVILEGE. — The precedents cited in the case at bar exemplify the Court’s policy to require satisfaction of the legal requirements in the probate of a will in order to guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary privilege.

2. ID.; ID.; HANDWRITING EXPERT MUST HAVE SUFFICIENT STANDARDS OF COMPARISON TO PROVE FORGERY OF TESTATRIX’S SIGNATURE. — The opinion of a handwriting expert trying to prove forgery of the testatrix’s signature fails to convince the court, not only because it is directly contradicted by another expert but principally because of the paucity of the standards used by him (only three other signatures), considering the advanced age of the testatrix, the evident variability of her signature, and the effect of writing fatigue.

3. ID.; ID.; VARIANCE IN INK COLOR NOT RELIABLE WHEN WRITINGS AFFIXED TO DIFFERENT KINDS OF PAPER. — The slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering that the standard and challenged writings were affixed to different kinds of paper.

4. ID.; ID.; FRAUD OF UNDUE INFLUENCE, DIVERSITY OF APPORTIONMENT AND PROHIBITION AGAINST CONTEST NO EVIDENCE OF. — Neither diversity of apportionment nor prohibition against contest is evidence of fraud or undue influence in the execution of a will.

5. ID.; ID.; FRAUD AND UNDUE INFLUENCE ARE REPUGNANT ALLEGATIONS. — Allegation of fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

6. ID.; ID.; INADVERTENT FAILURE OF AN ATTESTING WITNESS TO AFFIX HIS SIGNATURE TO ONE PAGE OF A WILL NOT FATAL. — The inadvertent failure of an attesting witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate.

7. ID.; ID.; SIGNED CARBON DUPLICATE OF WILL NEEDS NO PUBLICATION. — That the signed carbon duplicate of a will was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate, where the amended petition did not substantially alter the first one filed but merely supplemented it by disclosing the existence of said duplicate.

D E C I S I O N

REYES, J.B.L., J.:

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

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

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

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

On February 18, 1959, Enrique Ino, a son of the testatrix, also filed a manifestation adopting as his own Natividad’s opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Ino de Gomez and Enrique Ino filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition; and on July 30, 1959, oppositor Natividad Ino filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence. chanrobles virtual lawlibrary

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Ino at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent’s last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Ino, and a little girl. Of the said three instrumental witnesses to the execution of the decedent’s last will and testament attorneys

Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorney Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte’s last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

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

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix’s presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original; that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix; that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copy were duly acknowledged before Notary Public Jose Oyengco Ong of Manila on the same date — June 2, 1956.

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

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit A-1) are not genuine, nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents- appellees stand to profit from properties held by them as attorneys- in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

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

and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appealing in the duplicate original were not written by the same hand, which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer’s range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert’s opinion that the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that there are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right after the original. These factors were not discussed by the expert.

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

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao v. Ubag, 14 Phil. 163; Pecson v. Coronel, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary disposition that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non- heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occasion. It is also well to note that, as remarked by the Court of Appeals in Sideco v. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before

whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil v. Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause." 

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan v. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to mark the first page either by letters or numbers is not a fatal defect (Lopez v. Liboro, 81 Phil. 429). These precedents exemplify the Court’s policy to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of the original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma: if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

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

[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, v. HON. AVELINO S. ROSAL, as Judge of the Court of First Instance of Southern

Leyte, (Branch III, Maasin), Respondent.

SYNOPSIS

Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as evidence the alleged will and the testimony of one of the subscribing witnesses thereto. However, the trial court disallowed the will for want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix and at the left hand margin by three instrumental witnesses. Respondent judge interpreted Article 805 of the Civil Code to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" of the will but all 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 the will attest not merely the will itself but also the signature of the testator. Petitioner’s motion for reconsideration and subsequent motion for the appointment of special administrator were likewise denied.

On certiorari, the Supreme Court held a) that the objects of attestation and 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 a subscribing witness to be the same will executed by the testatrix; and b) that the failure of the attestation clause to state the number of pages used in writing the will would have been a fatal defect were it not for the fact that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.

Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to allow probate of the will and to conduct further proceedings.

SYLLABUS

1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND SUBSCRIPTION; DEFINED. — 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. 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).

2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. — 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.

3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. — 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 provision 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).

4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES USED IN WRITING THE WILL IS FATAL; EXCEPTION; CASE AT BAR. — The failure of the will’s attestation clause to state the number of pages used in writing the will would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses (See Singson v. Florentino, Et. Al. (192 Phil. 161, 1641 and Ino v. Ino, [11 SCRA 422, 429].)

D E C I S I O N

GUTIERREZ, JR., J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner," which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in 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 13) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner’s compliance with the requirement of publications, 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 parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent 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.

The petitioner decided to file the present petition.

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

Article 805 of the Civil Code provides: jgc:chanrobles.com.ph

"Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

"The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

"The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the with 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 them." cralaw virtua1aw library

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 all 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 will that the signatures of the subscribing witnesses should be specifically located at the end of the will 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 it 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. chanrobles.com.ph : virtual law library

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page." cralaw virtua1aw library

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: jgc:chanrobles.com.ph

"The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil. 405; Gumban v. Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. 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 passes 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." cralaw virtua1aw library

Ino v. Ino (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:chanrobles virtual lawlibrary

". . . 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 attest to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. v. 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 the 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 will and to conduct further proceedings in accordance with this decision. No pronouncement of costs.

SO ORDERED.

[G.R. NO. 122880 : April 12, 2006]

FELIX AZUELA, Petitioner, v. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.

D E C I S I O N

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

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

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial

will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills - that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali't at kondiciones;

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

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

(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito.

EUGENIA E. IGSOLO address: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.

QUIRINO AGRAVA address: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981

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

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

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

(Sgd.)PETRONIO Y. BAUTISTA

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

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner's right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent's signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor's arguments that the will was not properly executed and attested to in accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law.

On the oppositor's contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.

With regard to the oppositor's argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.

As regards the oppositor's assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8

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

Hence, the present petition.

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

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

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

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

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies.

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

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16

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

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20wherein the Court allowed probate to the wills concerned

therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval:

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

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson v. Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] v. Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson v. Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil., 405; Gumban v. Gorcho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) ( Underscoring supplied )

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

"x x x

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that,   in this case, it is discernible from the entire will that it is really and actually composed of only two pages

duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21

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

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25

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

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are

consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another's presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singsonand Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or

intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey propertypost mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator's incontestable desires, and not for the indulgent admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.

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

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

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses

are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses' undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.

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

Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the juratshould avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the

document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806.A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.

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

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

[G.R. No. 103554. May 28, 1993.]

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO,

SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his

Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,Petitioners, v. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo

Caballero, Respondents.

SYLLABUS

1. CIVIL LAW; SUCCESSION; WILL; DEFINED. — A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death (Rivera v. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code).

2. ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. — Under the Civil Code, there are two kinds of wills which a testator may execute. The first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. In addition to the requirements under Article 805, the ordinary will must be acknowledged before a notary public by the testator and the attesting witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who will read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is 

acknowledged (Art. 808, Civil Code). The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the hand of the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator (Art. 804, Civil Code).

3. ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. — An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution of the same (Testate Estate of Paula Toray, 87 Phil. 139 [1950]). It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. (Vda. de Ramos, Et. Al. v. Court of Appeals, et. al., 81 SCRA 393 [1978]). It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved (Leynez v. Leynez, 68 Phil. 745 [1939]).

4. ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION, DIFFERENTIATED. — It

will be noted that Article 805 requires that the witnesses should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is that act of the senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification (Hill v. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A. 1918 B 687).

5. ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. — Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state (1) the number of pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; (In the matter of the Estate of Sanguinsin, 41 Phil. 875 [1920]; In re Will of Andrada, 42 Phil. 180 [1921]) whereas the subscription of the signatures of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. (Testate Estate of Paula Toray, 87 Phil. 611 [1938]). Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. (Gonzales v. Gonzales de Carungcong, 90 Phil. 444 [1951]). The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to insure the authenticity thereof (Echevarria v. Sarmiento, 66 Phil. 611 [1938]). As it appertains only to the witnesses and not to the testator, it need be signed only by them (Abangan v. Abangan, 40 Phil. 476 [1919]). Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and the witnesses. (Cagro v. Cagro, 92 Phil. 1032 [1953]). In Taboada v. Rosal, (118 SCRA 195 [1982]), we clarified that attestation consists in witnessing the testator’s execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses’ names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.

6. ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. — What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the

will in the presence of the testator and of each other. The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis, is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in Article 809 of the Civil Code. Where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other, the defect is not only in the form or the language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause any statement, or an implication thereof, that the attesting witnesses did actually bear witness to the signing by the testator of the will and all its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another. 

7. ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER ART. 809 OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. — The rule on substantial compliance in Article 809 cannot be invoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied with in the execution of the will. In other words, the defects must be remedied by intrinsic evidence supplied by the will itself. In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied only by extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from which such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by indirection what in law he cannot do directly. It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions

which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.

D E C I S I O N

REGALADO, J.:

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

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2 

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason or another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, one of the legatees named in the will, sought his appointment as special administrator of the testator’s estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4 

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

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

In the course of the hearing in Special Proceeding No. 3899-R, herein

petitioners appeared as oppositors and objected to the allowance of the testator’s will on the ground that on the alleged date of its execution, the testator was already in a poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7 

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

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that: jgc:chanrobles.com.ph

". . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed this Last Will and Testament now marked Exhibit ‘C’ on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit ‘D’ clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit ‘C’ examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit ‘C’, nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors.

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

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

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:jgc:chanrobles.com.ph

"The question therefore is whether the attestation clause in question may be considered as having substantially complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors

claim to be defective is `we do certify that the testament was read by him and the testator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters on the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us’ (Emphasis supplied).

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

Petitioners moved for the reconsideration of said ruling of respondent court, but the same was denied in the latter’s resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and the settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

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

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

"Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.chanrobles law library

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them." cralaw virtua1aw library

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

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the hand of the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator. 17 

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

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution of the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21 

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

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; 23 whereas the subscription of the signatures of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. 24 

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

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

"The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

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

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses thereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference: jgc:chanrobles.com.ph

"We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO, has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in letters on the upper part of each page, as his Last Will and Testament and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us." cralaw virtua1aw library

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

In Taboada v. Rosal, 32 we clarified that attestation consists in witnessing the

testator’s execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses’ names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.

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

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

The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis, is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.chanroblesvirtualawlibrary

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit: jgc:chanrobles.com.ph

"Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end

thereof and at the left margin of each page by the three, attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witnesses affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33 

We believe that the following comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions: jgc:chanrobles.com.ph

". . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings." (Emphasis ours.)

3. We stress once more that under Article 809, the defects or imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

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

virtual lawlibrary

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements

were actually complied with in the execution of the will. In other words, the defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied only by extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from which such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by indirection what in law he cannot do directly.

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

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

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

Gumban v. Gorecho, Et Al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor: chanrobles

virtualawlibrary chanrobles.com:chanrobles.com.ph

"In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque v. Navas L. Sioca [1922], 43 Phil.

405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano v. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning with Abangan v. Abangan ([1919], 40 Phil., 476), continuing through Aldaba v. Roque ([1922], 43 Phil., 378), and Fernandez v. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve v. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate, the last two decisions cited by opposing counsel, namely, those of Sano v. Quintana, supra, and Nayve v. Mojal and Aguilar, supra.

"In the case of Sano v. Quintana, supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque v. Sioca, supra, was cited, but the case of Nayve v. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve v. Mojal and Aguilar, supra, wherein it was held that the attestation clause must state the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will.

"It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type, it would be impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse.

"In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law.

"The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure, as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 61, as amended that ‘No will . . . shall be valid . . . unless . . . .’ It is further provided in the same section that `The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.’ Codal section 634 provides that ‘The will shall be disallowed in either of the following cases: 1. If not executed and attested as in this Act provided.’ The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically

and clearly expressed.

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

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of view that was earlier threshed out therein. The cases of Quinto v. Morata, 49 Rodriguez v. Alcala, 50 Echevarria v. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated in Gumban. But De Gala v. Gonzales, Et Al., 53 Rey v. Cartagena, 54 De Ticson v. De Gorostiza, 55 Sebastian v. Panganiban, 56 Rodriguez v. Yap, 57 Grey v. Fabia, 58 Leynez v. Leynez, 59 Martir v. Martir, 60 Alcala v. De Villa, 61 Sabado v. Fernandez, 62 Mendoza v. Pilapil, 63 and Lopez v. Liboro, 64 veered away from the strict interpretation rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission: jgc:chanrobles.com.ph

"The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque v. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of his property.

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

"In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads: chanrob1es virtual 1aw library

‘ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 829.’" 65 

The so-called liberal rule, the Court said in Gil v. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results." cralaw virtua1aw library

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

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

SO ORDERED.

[G.R. No. L-32213. November 26, 1973.]

AGAPITA N. CRUZ, Petitioner, v. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and

MANUEL B. LUGAY, Respondents.

D E C I S I O N

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate of the last will and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposed the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud, deceit, misrepresentation 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 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. Jamaoas, Jr., Dr. Francisco Pañares, 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: jgc:chanrobles.com.ph

"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." cralaw virtua1aw library

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (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 arrangements. Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud (Report of the Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the execution of the document he has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130) There are others holding that his signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E.

2d. 346; In Re Douglas’ Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee’s Estate 160 N. W. 900; 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 in the aforecited cases merely acted as instrumental, subscribing or 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: jgc:chanrobles.com.ph

"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 of 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 805 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 that purpose. In the circumstances, the law would not be duly 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.

[G.R. NO. 157451 December 16, 2005]

LETICIA VALMONTE ORTEGA, Petitioner, v. JOSEFINA C. VALMONTE, Respondent.

D E C I S I O N

PANGANIBAN, J.:

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

The Case

Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is rendered approving and

allowing probate to the said last will and testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings."4

The assailed Resolution denied petitioner's Motion for Reconsideration.

The Facts

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

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down asCOR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that:

'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

'I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my family and friends;

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

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

b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

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

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.'

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

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

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

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

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

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

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

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto;'

and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was hospitalized only because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator's will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his observation the testator was physically and mentally capable at the time he affixed his signature on the will.

"The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house of spouses

Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during the execution, the testator's wife, Josefina was not with them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia's family to live with him and they took care of him. During that time, the testator's physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely:

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

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

"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make him a person of unsound mind.

Hence, this Petition.7

Issues

Petitioner raises the following issues for our consideration:

"I.

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

"II.

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

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will."8

In short, petitioner assails the CA's allowance of the probate of the will of Placido Valmonte.

This Court's Ruling

The Petition has no merit.

Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during the trial may be examined and the factual matters resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those of the trial court.9

The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmonte's will by imputing fraud in its execution and challenging the testator's state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator's wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience"12for an old man with a severe psychological condition to have willingly signed a last will and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution.14 The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will.16 That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and disregarded

petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator] in his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document, "because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion."18 More important, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another.19 Furthermore, the testator and the witnesses must acknowledge the will before a notary public.20 In any event, we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 - - as quoted by the CA - - are reproduced respectively as follows:

"Atty. Floro Sarmiento:

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

A Yes sir.

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

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

x x x

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

A Yes sir.

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

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

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

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

Eugenio Gomez:

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

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

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

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

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

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

Felisa Gomez on cross-examination:

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

x x x

A The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty. Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:

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

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

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

A Yes, Sir.

Q For what purpose? chanroblesvirtualawlibrary

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned? chanroblesvirtualawlibrary

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

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution.23 Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives.24

C apacity   to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

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

According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the testator's bounty, and (3) the character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:

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

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

[G.R. No. 74695. September 14, 1993.]

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, Petitioner, v. HON.

RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI

MA. RINO,Respondents.

SYLLABUS

1. CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL CODE; SCOPE OF THE TERM "BLINDNESS." — The following pronouncement in Garcia v. Vasquez provides an insight into the scope of the term "blindness" as used in Art. 808, to wit: "The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . ." Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or

"blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions.

2. ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE. — Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.

3. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH, ACCEPTABLE; REASON. — This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will.

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

D E C I S I O N

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time

awaiting probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.

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

Meanwhile, Brigido’s holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator’s eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.

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

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

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

The issues now before us can be stated thus: Was Brigido Alvarado blind for

purposes of Art. 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads: jgc:chanrobles.com.ph

"Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing, witnesses, and again, by the notary public before whom the will is acknowledged."cralaw virtua1aw library

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman’s terms by Dr. Ruperto Roasa, whose expertise was admitted by private Respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8 

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

We agree with petitioner in this respect.

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

The following pronouncement in Garcia v. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit: jgc:chanrobles.com.ph

"The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . ." cralaw virtua1aw library

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his

will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.

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

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

We sustain private respondent’s stand and necessarily, the petition must be denied.

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

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

Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental

witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator’s physician) asked the testator whether the contents of the documents were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.

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

As a final word to convince petitioner of the propriety of the trial court’s Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit: jgc:chanrobles.com.ph

"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator’s will, must be disregarded" (Emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside for the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.

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

SO ORDERED.

[G.R. No. 38338. January 28, 1985.]

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE

JESUS, Petitioners, v. ANDRES R. DE JESUS, JR., Respondent.

SYLLABUS

1. CIVIL LAW; WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS; DEPARTURE FROM STRICT STATUTORY REQUIREMENTS; LIBERAL TREND FAVORED. — This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy.

2. ID.; ID.; ID.; PREVAILING POLICY. — Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege (Ino v. Ino, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator.

3. ID.; ID.; SOLEMNITIES IN THE EXECUTION OF WILLS; PURPOSE. — The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abangan, 40 Phil. 476, where we ruled that: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity . . ." In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

4. ID.; ID.; ID.; DATE IN A HOLOGRAPHIC WILL; WILL ALLOWED TO PROBATE UNDER THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE. — We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wills and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61" appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

D E C I S I O N

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus.

On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Will on July 21, 1973. chanrobles law library

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61" and states: "This is my will which I want to be respected altho it is not written by a lawyer. . ." cralaw virtua1aw library

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61" is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61" was the date when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because — (a) it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month, and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads: jgc:chanrobles.com.ph

"WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside." cralaw virtua1aw library

The only issue is whether or not the date "FEB./61" appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads: chanrob1es virtual 1aw library

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed."cralaw virtua1aw library

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Will the "year, month, and day of its execution," the present Civil Code omitted the phrase "Año, mes y dia" and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail. chanrobles virtual lawlibrary

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy —

"The underlying and fundamental objectives permeating the provisions of the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in

expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

"This objective is in accord with the modern tendency with respect to the formalities in the execution of wills." (Report of the Code Commission, p. 103)

In Justice Capistrano’s concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that: chanrobles.com:cralaw:red

x       x       x

". . . The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent."cralaw virtua1aw library

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege (Ino v. Ino, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). Thus,

x       x       x

". . . More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect . . ." (Leynez v. Leynez, 68 Phil. 745)

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abangan, 40 Phil. 476, where we ruled that: jgc:chanrobles.com.ph

"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 . . ." cralaw virtua1aw library

In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1

Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wills and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61" appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. chanrobles virtual lawlibrary

As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

[G.R. No. L-40207. September 28, 1984.]

ROSA K. KALAW, Petitioner, v. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and

GREGORIO K. KALAW, Respondents.

SYLLABUS

CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; EFFECT OF ALTERATIONS THEREIN NOT AUTHENTICATED BY FULL SIGNATURE OF TESTATRIX; CASE AT BAR. — Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. (Velasco v. Lopez, 1 Phil. 720, 725 [1903], citing a Decision of the Supreme Court of Spain of April 4, 1895) Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." (Comentarios al Codigo Civil Español, Quinta edicion, Tomo 5, Lib. III — Tit. III — Cap. I — Art. 688, pag. 483) However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after

that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature. The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude.

D E C I S I O N

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows: chanrob1es virtual 1aw library

My Last will and Testament

In the name of God, Amen.

I, Natividad K. Kalaw, Filipino, 63 years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I be buried in the cemetery of the catholic church of Lipa City. In accordance with the rites of said Church, and that my executrix hereinafter named provide and erect at the expense of my state a suitable monument to perpetuate my memory.

2. I give, device and bequeath all my property real and personal to my beloved brother Gregorio K. Kalaw to have and to hold the same as his property absolutely and unconditionally.

3. I hereby appoint my said brother Gregorio K. Kalaw as sole executive of this my last will and testament, and it is my will that said executrix be exempted from filing a bond.

In witness where of I have hereunto set my hand this 24th day of Dec., 1968.

Natividad K. Kalaw

Testatrix

Witnesses:chanrob1es virtual 1aw library

Lydia S. Recio

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.

Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading: jgc:chanrobles.com.ph

"Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature."cralaw virtua1aw library

ROSA’s position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 1973, reading in part: jgc:chanrobles.com.ph

"The document Exhibit ‘C’ was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit ‘C’ was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the will, Exhibit ‘C’, should be admitted to probate although the alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel.

"The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit ‘C’. Finding the insertions, alterations and/or additions in Exhibit ‘C’ not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit ‘C’.

"WHEREFORE, the petition to probate Exhibit ‘C’ as the holographic will of Natividad K. Kalaw is hereby denied." cralaw virtua1aw library

"SO ORDERED."cralaw virtua1aw library

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were made by the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being clear and explicit, (it) requires no necessity for interpretation." cralaw virtua1aw library

From that order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on Certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir. cralawnad

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his

signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. 1 Manresa gave an identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2 

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature.

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived: jgc:chanrobles.com.ph

". . . No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones, no salvadas por el testador bajo su firma, segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determina las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se llegaria al absurdo de que pequeñas enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armoniay congruencia con el art. 26 de la ley del Notariado, que declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, pero no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l).

"Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras que no afecten, alteren ni varien de modo substancial la expresa voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la enmienda del guarismo ultimo del año en que fue extendido" 3 (Emphasis ours).

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

SO ORDERED.