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UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Anacleta Abellana Lucio BALONAN, petitioner-appellee vs. Eusebia ABELLANA, et al., oppositors-appellants.

FACTS: It appears on record that the last Will and Testament sought to be probated consists in two typewritten pages. The first page is signed by Juan Bello and on the left margin appears the signatures of the three instrumental witnesses. On the second page appears the signature of said witnesses, at the bottom of which appears the signature of the notary public and below said signature is his designation as notary public. On the left margin of the second page (last page of the will) appears the signature of Juan Bello under whose name appears handwritten the phrase, Por la Testadore Anacleta Abellana (For the Testate of Anacleta Abellana). The will is duly acknowledged before the notary public. ISSUE: Whether or not the signature of Juan Bello comply with the requirements of law prescribing the manner in which a will shall be executed. RULING: Article 805 of the Civil Code provides: Every will, other than a holographic will, must be subscribed at the end there of by the testator himself or by the testators 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 law requires that the testator himself sign the will, or if he cannot do so, the testators name must be written by some other person in his presence and by his express direction. In this case, the name of the testatrix, Anacleta Abellana does not appear written under the will by said Abellana herself, or by Dr. Juan Bello. There is therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction. Hence, the will of the deceased Anacleta Abellana must not be admitted to probate.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Tedoro CANEDA, et al., petitioners vs. Hon. COURT OF APPEALS and William CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents. FACTS: On December 5, 1978, Mateo Caballero, a widower without any children, already in the twilight years of his life executed a last will and testament before three attesting witnesses and he was duly assisted by his lawyer and a notary public. It was declared therein that, among other things that the testator was leaving by way of legacies and devises his real and personal properties to specific persons, all of whom do not appear to be related to Mateo. Not long after, he himself filed a petition before the CFI seeking the probate of his last will and testament but the scheduled hearings were postponed, until the testator passed away before his petition could finally be heard by the probate court. Benoni Cabrera, one of the legatees named in the will, sought his appointment as special administrator of the testators estate but due to his death, he was succeeded by William Cabrera, who was appointed by RTC which is already the probate court. CONTENTIONS: PETITIONERS: The petitioners assail to the allowance of the testator's will on the ground that it was not executed in accordance with all the requisites of law since the testator was already in a poor state of health such that he could not have possibly executed the same. Petitioners likewise contend that the will is null and void because 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. RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and disposing mind and in good health when he executed his will. Further, they also contend that the witnesses attested and signed the will in the presence of the testator and of each other. ISSUES: 1. Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective such that whether or not it affects the validity of the will. 2. Whether or not the attestation clause complies with the substantial compliance pursuant to Article 809 of the Civil Code. RULING: 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. 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. Under the 3rd paragraph of Article

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

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 cause 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 the said witnesses also signed the will and every page thereof in the presence of the testator and of one another. It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. Attestation and subscription differ in meaning. Attestation is the act of sense, while subscription is the act of the hand. The attestation clause herein assailed is 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. What is then clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. The absence of the 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 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: In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence, defects and imperfection in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. The defects and imperfection must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfection would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. These 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. In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which it can be read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Brigido Alvarado, Cesar ALVARADO, petitioner vs. Hon. Ramon GAVIOLA FACTS: On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled, Huling Habilin wherein he disinherited an illegitimate son, Cesar Alvarado, and expressly revoked a previously executed holographic will at the time awaiting probate before RTC. As testified to by the three instrumental witnesses, the notary public and Cesar, the testator did not read the final draft of the will, instead, Atty. Rino, as the lawyer who drafted the document read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. While the testators will was admitted to probate, a codicil was subsequently executed changing some dispositions in the notarial will to generate cash for the testators eye operation because he was then suffering from glaucoma. But the disinheritance and the revocatory clauses remained and as in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was Atty. Rino who read it aloud in his presence and in the presence of the three instrumental witnesses and of the notary public. Upon the testators death, Atty Rino as executor filed a petition for probate of the notarial will which was in turn opposed by Cesar alleging that the will sought to be probated was not executed and attested as required by law. Upon failure of Cesar to substantiate his Opposition, a Probate Order was issued from which an appeal was made to IAC stating that the probate of the deceaseds last will and codicil should have been denied because the testator was blind within the meaning of the law at the time his Huling Habilin and the codicil thereto was executed; and that since reading required by Art. 808 were admittedly not complied with. CA concluded that although Art. 808 was not followed, there was, however, substantial compliance. ISSUES: 1. Whether or not Brigido Alvarado was blind within the meaning of Article 808 at the time his Huling Habilin and codicil were executed. 2. If so, whether or not the requirement of double-reading in said Article was complied with such that whether or not, they were validly executed. RULING: Art. 808 apply not only to blind testators but also to those who, for one reason or another, are incapable of reading their wills. Since the deceased 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 but to conclude that he comes within the scope of the term blind as 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 instruction. Hence, to consider his will as validly executed and entitled to probate, it is essential to ascertain whether or not Art. 808 had been complied with. There is no evidence and Cesar does not allege that the contents of the will and codicil were not sufficiently made known and communicated to the testator.
ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

On the contrary, with respect to the Huling Habilin, the day of the execution was not the first time that the testator had affirmed the truth and authenticity of the contents of the draft. Moreover, 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 were the terms actually appearing on the typewritten documents. This is especially true considering the fact that the three instrumental witnesses were persons known to the testator. The spirit behind that 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 authenticity of the will, the formal imperfection should be brushed aside when they do not affect its purpose and which, when taken into account may only defeat the testators will. Substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of will are intended to protect the testator from all kinds of fraud and trickery but are never intended to be as rigid and inflexible as to destroy the testamentary privilege.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Agapita N. CRUZ, petitioner vs. Hon. Judge Guillermo P. VILLASOR and Manuel LUGAY, respondents. FACTS: Agapita Cruz is the surviving spouse of the deceased Valente Cruz. Agapita filed before the CFI an opposition for the allowance of the will of his late husband alleging that the will was executed through fraud, deceit, misrepresentation and undue influence because the said instrument was executed without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. However, due to unfavorable decision, Agapita appealed by certiorari before the Supreme Court. ISSUE: Whether or not the supposed last will and testament was executed in accordance with law. RULING: Of the three instrumental witnesses, one of them is at the same time the Notary Public before whom the will was supposed to have been acknowledged. The Supreme Court is inclined to sustain 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. 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. 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 that only two witnesses appeared before the notary public for or that purpose. In the circumstance, the law would not be duly observed. The judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. is declared not valid and hereby set aside.cha

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Testate Estate of Felicidad Esguerra Alto-Yap deceased Fausto E. GAN, petitioner-appellant, vs. Ildefonso YAP, oppositor-appellee. FACTS: Felicidad Esguerra Alto Yap allegedly executed a holographic will dated November 5, 1951. She showed this wills to her niece Felina Esguerra and three other relatives who visited her.Few days after the said execution of the will, Felicidad was confined at the hospital. Accordingly, she entrusted the said will, which was contained in a purse, to Felina. Before Felina gave the purse to Felicidads husband, Ildefonso, she had the chance to read again the will for the last time. After the death of Felicidad, Fausto E. Gan, one of the beneficiaries of the will, initiated a petition for its probate. Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. The will itself was not presented. Gan tried to establish its contents and due execution by the statements of allegedly four (4) witnesses to the execution of the alleged will. After hearing the parties and considering their evidence, the court refused to probate the alleged will. Due to the denial of motion for reconsideration, Gan appealed. ISSUE: Whether or not a holographic will may be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator. RULING: In the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be - or not to be - in the hands of the testator himself. "In the probate of a holographic will" New Civil Code provides, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The difference between holographic wills and ordinary will lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself, in the second, the testimony of the subscribing or instrumental witnesses (and of the notary). The loss of the holographic will entails the loss of the only medium of proof, if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the given case, the evidence presented by the petitioner was not convincing that such holographic will was indeed executed. Even if oral testimony were admissible to establish and probate a lost holographic will, the evidence submitted by the petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, Petitioner, vs. JULIANA LACUESTA, ET AL., Respondents. FACTS: Antero Mercados made a will which is written in Ilocano dialect wherein it appears that it was signed by Atty. Florentino Javiwe who wrote the name of Antero. The testator was alleged to have written a cross immediately after his name. The Court of First Instance found that the will was valid but the Court of Appeals reversed the lower courts decision holding that the attestation clause failed: 1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; 2) to certify that after the signing of the name of the testator by Atty. Javier at the formers request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof 3) to certify that the witnesses signed the will in all the pages thereon in the presence of the testator and of each other. Hence, this appeal. ISSUE: Whether or not the attestation clause is valid. RULING: No. The will is invalid because, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Javier to write the testators name under his express direction, as required by section 168 of the Code of Civil Procedure. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, the SC is not prepared to liken the mere sign of the cross to a thumbmark and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark. Appealed decision is hereby affirmed.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Testacy of Sixto Lopez, Jose S. LOPEZ, petitioner-appellee, vs. Agustin LIBORO, oppositor-appellant.

FACTS: The will of Don Sixto Lopez was submitted for probate by Jose Lopez and Clemencia Lopez, the Dons sister. The probate was opposed by Agustin Liboro who contended that the will is not valid due to the following grounds: (1) That the deceased never executed the alleged will; 2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick. Liboro pointed out that the first page of the will, which was contained in two pages in all, was not numbered in letters or Arabic numbers as what should have been required by law. It was also argued that the testator should have signed the will with his signature and not only with his thumb print if he indeed had the capacity to execute the will. Furthermore, the will did not expressly state that the language used is a language which the Don understood; in this case, it was in Spanish. ISSUE: Whether or not there was substantial compliance to qualify the will for probate. RULING: Yes, it was executed in all particulars as required by law. The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the substitution or of defecting the loss of any of its pages. In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numerical words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction for the disposition of the marker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page one.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. As for the question on the language of the will, there is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. The will may therefore be submitted for probate.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Beatriz NERA, et al., plaintiffs-appellees, vs. Narcisa RIMANDO, defendant-appellant.

FACTS: Rimando opposes the admission for probate of a certain will on the ground that one of the subscribing witnesses therein was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures. That time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument. ISSUE: How may the requirement of the law for all witnesses to subscribe to the will in the presence of each other apply to this case. RULING: The will may be admitted for probate. The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. At the moment when a witness signs the document he was actually and physically present and in such position with relation to the other witnesses that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so. The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

In the Matter of the Intestate Estate of Andres G. De Jesus and Bibiana Roxas de Jesus, Simeon R. ROXAS and Pedro ROXAS de Jesus, petitioners vs. Andres R. de JESUS, Jr.

FACTS: After the death of spouses Andres and Bibiana de Jesus, her family found a notebook containing a holographic will. The letter-will was addressed to her children, entirely written and signed in her handwriting and dated FEB./61. . A special proceeding was instituted by Simeon, brother of Bibiana. Simeon was then appointed administrator of the estate and consequently, he delivered to the lower court a document purporting to be the holographic will of Bibiana which was then set for a hearing. Luz Henson, one of the compulsory heirs filed an opposition to probate assailing the purported holographic Will of Bibiana was not executed in accordance with law. However, the lower court issued an order allowing the probate which was found to have been duly executed in accordance with law. A motion for reconsideration was then filed by Luz assailing that the alleged holographic will was not dated as required by Article 810 of the Civil Code and contending 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. The court then reconsidered its 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. ISSUE: Whether or not the date (FEB/61) appearing on the holographic will of the deceased Bibian Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code. RULING: Yes the date FEB./61 appearing on the holographic Will of the deceased Bibiana Roxas de Jesus complies with the requirement of Article 810 of the Civil Code which states: 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. 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.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Nenita de Vera SUROZA, complainant, vs. Judge Reynaldo P. HONRADO and Evangeline YUIPCO, respondents. A.M. No. 2026-CFI, December 19, 1981 FACTS: Mauro Suroza, a corporal in the 45th Infantry of the US Army (Philippine Scouts) married Marcelina Salvador but they were childless. However, they reared a boy named Agapito who used the surname Suroza and who considred them as parents as shown in his marriage contract with Nenita de Vera. When Mauro died, Marcelina, as a veterans widow, became a pensioner of the Federal Government. Agapito and Nenita begot a child named Lilia and afterwards, Agapito also became a soldier. However, he was disabled and his wife was appointed as his guardian when he was declared an incompetent. In connection to this, a woman named Arsenia de la Cruz (apparently a girlfriend of Agapito) wanted also to be his guardian however the court confirmed Nenitas appointment as guardian of Agapito. The spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who was delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter. Marilyn used the surname Suroza and stayed with Marcelina but was not legally adopted by Agapito. Marcelina, being a veterans widow accumulated some cash in two banks. She executed a notarial will which is in English and was thumbmarked by her for she was illiterate. In that will, Marcelina bequeathed all her estate to Marilyn. After her death, Marina Paje (alleged to be a laundrywoman of Marcelina and the executrix in her will) filed a petition for probate of Marcelinas alleged will. As there was no opposition, Judge Honrado appointed Marina as administratix and subsequently, issued two orders directing the two banks to allow Marina to withdraw from the savings of Marcelina and Marilyn Suroza and requiring the custodian of the passbooks to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order instructing the sheriff to eject the occupants of the testatrix house among whom was Nenita and to place Marina in possession thereof. Nenita was then alerted to the existence of the testamentary proceeding hence, she and other occupants filed a motion to set aside the order ejecting them, alleging that the decedents son Agapito was the sole heir of the deceased; that he has a daughter named Lilia; that Nenita was Agapitos guardian; and that Marilyn was not Agapitos daughter nor the decedents granddaughter. Later, they questioned the probate courts jurisdiction to issue the ejectment order. In spite of such fact, Judge Honrado issued on order probating Marcelinas supposed will wherein Marilyn was the instituted heiress. Nenita filed in the testate case an omnibus petition to set aside proceedings, admit opposition with counter petition for administration and preliminary injunction reiterating that Marilyn was a stranger to Marcelina; that the will was not duly executed and attested; and that the thumbmarks of the testatrix were procured by fraud or trick. Further, that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix. Not contented with her motions, Nenita filed an opposition to the probate of the will and a counter-petition which was however, dismissed. Instead of appealing, Nenita filed a case to annul the probate proceedings which was also dismissed. Hence, this complaint.
ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

ISSUE: Whether or not a disciplinary action should be taken against respondent judge for having admitted a will, which on its face is void. RULING: Disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedents legal heirs and not the instituted heiress in the void will should have inherited the decedents estate. Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service. In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

In the Matter of the Petition for Probate of the Will of Dorotea Perez, Apolonio TABOADA, petitioner, vs. Hon. Avelino S. ROSAL, Judge of Court of First Instance of Southern Leyte (Branch III, Maasin) respondent. FACTS: In the petition for probate filed with respondent court, Taboada attached the alleged last will and testament of the late Dorotea Perez which was written in the Cebuano-Visayan dialect and consisting two pages: the first page contains the entire testamentary dispositions and is signed at the bottom of the page by the testatrix alone and at the left hand margin by three (3) instrumental witnesses; and the second page contains the attestation clause and the acknowledgment is signed at the end of such clause by the said instrumental witnesses and at the left hand margin by the testatrix. The trial court, through Judge Pamatian, denied the probate of the will for want of formality in its execution and ordered Taboada to submit the names of the intestate heirs; however, the latter did not comply with the said order. Instead, he 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 and further, he filed a motion for reconsideration of the order denying the probate of the will. However, the motions could not act upon by Judge Pamatian due to his transfer and thus, Judge Rosal assumed the position. Meanwhile, Taboada filed a motion for the appointment of special administrator. Subsequently, the three motions filed by the petitioner were denied, hence this present petition. ISSUE: Whether or not the law requires 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. RULING: Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators 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 cause 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
ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

the will and the pages thereof in the presence of the testator and of one another. 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. 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 the subscribing witnesses. There was no question of fraud or substitution behind the questioned order.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Rosario Feliciano VDA. DE RAMOS, et al., petitioners, vs. COURT OF APPEALS, Marcelina (Martina) GUERRA, et al., respondents. FACTS: Eugenia Danila allegedly executed a will and testament dated March 9, 1963 and a codicil dated April 18, 1963. Adelaida Nista, one of the instituted heirs filed a petition for the probate of the two documents. The adopted daughter and son of the deceased filed an opposition. CONTENTIONS: PETITIONERS: The will and codicil are valid since it complied with the formalities required by law for the execution of a will and codicil. RESPONDENTS: The adopted children alleged that the will and codicil were procured through fraud and undue influence. They further contend that the formalities required by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the testatrix. They also claim that Eugenia had already executed on November 5, 1951 her last will and testament which was duly probated and not revoked or annulled during her lifetime. ISSUE: Whether or not the last will and codicil were executed in accordance with the formalities of the law, considering two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary. HELD: The last will and codicil were executed in accordance with the formalities required by law. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation claim far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. With regard to the testimonies of the witnesses against the due execution of a will, it does not necessarily disallow its probate. Although the subscribing witnesses to a contested will are the best witnesses in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise, it may be overcome by any competent evidence, direct or circumstantial. As a rule, if any or all of the subscribing witnesses testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by the law.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

CAGRO, Petitioner v. CAGRO, respondent 92 PHIL 1032 FACTS: 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. W e are of the opinion that the position taken by the appellant i s c o r r e c t . T h e 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. ISSUE: The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. RULING: An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negates their participation. If an atte station clause not signed b y th e three witn esse s at the botto m thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequen t occa sion and in the absence of the testator and a ny or all of the witnesses. Bautista, Angelo, dissenting: T h i s objection is too technical to be entertained. In the case of Abangan v s . Abangan, (40 Phil., 476), t h i s c o u r t s a i d t h a t w h e n t h e t e s t a m e n t a r y dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet wo uld be co mpletely purposeless." In su ch a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions has already been accomplished. We may say the same thing in connection with the will under consideration becau se while the three instru men tal witn esses did not sign i mmediately by the ma jority that it may ha ve be en o nly added on a subse quent occasion and no t at the uncon tradicte d testi mony of said witnes ses to the eff ect th at su ch atte sta tion clause wa s already writte n in the will when the same was signed.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Testate estate of CARLOS GIL, deceased. ISABEL HERRERO VDA. DE GIL, administratrix-appellee, vs. PILAR GIL VDA. DE MURCIANO, oppositor-appellant. FACTS: Carlos Gil executed a last will and testament. After his death, it was presented for probate in the Court of First Instance of Manila. This was opposed by his nephew, Roberto Toledo y Gil and sister, Pilar Vda. de Murciano. Toledo was eliminated from the case since he has no legal right to intervene. The will was initially destroy and was reconstituted. The parties all agree that the reconstituted will is a copy of the original will. In the said will, the attestation clause does not state that the testator signed the will. It only declares that it was signed by the witnesses. Despite this defect, the Court of First Instance admitted to probate the will. Pilar opposed such probate and appealed the decision of CFI to the Supreme Court. The latter, reversed the decision of the CFI. Not contended with the decision, Isabel Herreros Vda. de Gil, the administratrix, filed a motion for reconsideration to the Supreme Court. CONTENTIONS: ADMINISTRATRIX-APPELLEE: Isabel Herreros Vda. de Gil, the administratrix, contends that defective attestation clause may be cured by inferring in the other parts of the will and inserting a missing phrase to complete the whole meaning of the attestation clause. She also claims that the court may correct clerical errors in a will as evidence by the earlier decisions of the Supreme Court. OPPOSITOR-APPELLANT. Pilar, on the other hand, contends that the will should not be probated since the will did not comply with the requirement of Section 618 of the Code of Civil Procedure, as amended, which provides that "The attestation clause 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." Secondly, the earlier decision of the Supreme Court in this case stated that the defect in the attestation clause is a fatal and not just a mere clerical error for it affects the very essence of the clause. Thus, the defect cannot be cured by inference to the will itself ISSUE: Whether or not the will is valid despite its defective attestation clause? HELD: The will is valid. It seems obvious that the missing phrase was left out from the copy. The problem posed by the omission in question is governed, not by the law of wills which require certain formalities to be fulfilled in the execution
ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

but by the rules of construction applicable to statutes and documents in general. The court may and should correct the error by supplying the omitted word or words. It has been said, and experience has shown, that the mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. That would be the effect in this case if the will under consideration were rejected for the adverse party now concedes the genuineness of the document. The genuineness is super obvious, and there is not the slightest insinuation of undue pressure, mental incapacity of the testator or fraud. Coming to the execution of wills, the Supreme Court saw no legitimate, practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter. The will is of the testators own making, the intervention of attesting witnesses being designed merely to protect his interest.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

AZAOLA, Petitioner v. SINGSON, Respondent 109 PHIL. 102 FACT S: The sub ject o f this case is the holo graphic will of Fotunata Yance. Francisco Azaola submitted the said holographic will w h e r e b y M a r i a A z a o l a w a s m a d e t h e s o l e h e i r o f t h e deceased. The probate of the will is conte sted o n the grou nd tha t the will was executed under undue influence, that the document was not intended to be the will of the deceased and that the proponent of the will failed to present at least three w i t n e s s e s w h o c o u l d d e c l a r e t h e w i l l a n d t h e s i g n a t u r e therein to be in the writing of the testatrix. In this case , the prop onent o f the will only presented o ne witn ess to prove th at t he b ody of a nd signature in the will was that of the testator, ISSUE: W hether or not t he thre e- wit ness rule is mand atory and applicable in this case. RULING: The SC held that the petitioner is not bound to produce more t h a n o n e w i t n e s s a s t h e a u t h e n t i c i t y o f t h e w i l l i s n o t i n question. Granting also tha t t he g enuineness o f the will is con test ed, the provision of Art 811 should not be interpreted to require the compulsory presentation of the three witnesses. First, it should be noted that in holographic wills, no witnesses required in the execution thereof, thus the existence of the witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. Second, the law itself conte mplates a situation wher e no competent witness can be produced thus allowing the court to resort to expert evidence to supply the deficiency. T o c l a r i f y f u r t h e r , t h e o p t i o n t o require expert evidence d e p e n d s o n t h e d i s c r e t i o n o f t h e c o u r t . I f t h e c o u r t i s convinced by the testi mony of the witnesses, it may no longer ask for expert evidence. H o w e v e r , i f t h e r e i s n o competent witness or if those produced were not convincing, the court may accordingly call for expert evidence. Thus, t he ca se is re ma nded to allow the parties to ad duc e additional evidence including expert testimony. Art 811 requiring three witnesses in the probate of c ontested holographic will is merely directive and not mandatory

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

Rev. Father Lucio V. Garcia, Antonio Jesus De Praga, Maria Natividad De Jesus and Dr. Jaime Rosario, Petitioner, vs. Hon. Conrado M. Vasquez, as Judge of the Court of First Instance of Manila, Branch V, and Consuelo Gonzales Vda. De Precilla, Respondents. FACTS: Gliceria Avelino del Rosario owned an estate consisting mostly of real properties. During her lifetime, she executed two wills. The first was done on June 9, 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke and the second on December 29, 1960, consisting of 1 page written in Tagalog. During the execution of the latter will, the three witnesses testified that Gliceria was apparently of clear and sound mind and that the will, which was already prepared, was first read by Gliceria silently before she signed it in the presence of the three witnesses and the notary public. On August 8, 2010, Gliceria had her left eye operated because it is infected with cataract. In spite the operation and her being fitted with aphakic lens, her vision remained mainly for viewing distant objects and not for reading print. On September 2, 1965 Gliceria died unmarried leaving no descendents, ascendants, brothers or sisters. Her niece, Consuelo S. Gonzales Vda. De Precilla, then petitioned the Court of First Instance of Manila for probate of the alleged last will and testament or the second will of Gliceria. This petition was opposed separately by several groups of alleged heirs. CONTENTIONS: PETITIONERS: The petitioners contend that the second will was not intended by the deceased to be her true will. According to them, during the execution of the second will, the testatrixs eyesight was so poor and defective that she could not have read the provisions of the will. Thus, the due execution of her will should require the observance of the provisions of Article 808 of the Civil Code which provides: 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. RESPONDENT: The private respondent on the other hand contends that Article 808 of the Civil Code need not be applied since Gliceria was not blind at the time she executed her second will. It presented a medical certificate issued by an ophthalmologist certifying that Gliceria was provided with aphakic lenses and had been under medical supervision up to 1963 with apparently good vision. Moreover, the respondent further contends that Gliceria was able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the alleged execution of her second will.
ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

ISSUE: Whether or not Gliceria be qualified as blind within the meaning of the law. HELD: Yes, Gliceria is qualified as blind within the meaning of the law. According to the testimony of the ophthalmologist, when she said that Gliceria had apparently good vision, it does not necessarily mean that she can read but that she is able to go around, take care of herself and see. Thus, since Gliceria was incapable of reading, she could not have read the provisions of the will supposedly signed by her. It is worth noting the instrumental witnesses stated that she read the instrument silently which is a conclusion and not a fact. Furthermore, the contents of the instruments were crammed in a single sheet of paper and it contains allot of spelling errors. As such, Gliceria could have notice said glaring errors if she had actually retained the ability to read the purported will and had done so. With regards to private respondents contention that she was able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks, these does not prove that she was able to read a closely typed page, since the act shown do not require vision at close range. In conclusion, since Gliceria is qualified as blind within the meaning of the law, the observance of the provisions of the Article 808 of the Civil Code should have been strictly followed in the execution of the second will. Thus, the second will is invalid.

ATTY RONEY JONE P GANDEZA - PROFESSOR

UNIVERISITY OF THE CORDILLERAS COLLEGE OF LAW WILLS AND SUCCESSION CASE DIGEST`

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant, vs. FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees. FACTS: Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal, leaving no forced heirs. Appellant filed a petition with the court for the probate of said alleged will wherein he was instituted as sole heir. Appellees herein, opposed the petition on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of said will. After due trial, the court rendered the appealed decision finding the document to be the authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code that the will must be acknowledged before a notary public by the testator and the witnesses. An examination of the document shows that the same was acknowledged before a notary public by the testator but not by the instrumental witnesses. ISSUE: Whether or not the failure to acknowledge the will before a notary public renders the will void. RULING: Article 806 of the New Civil Code reads as follows: 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. We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity. As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated.Decision appealed from is affirmed,

ATTY RONEY JONE P GANDEZA - PROFESSOR