VITUG VS CA

FACTS: This case is a chapter in an earlier suit decided by this Court

involving the probate of the two wills of the late Dolores Luchangco Vitug,
who died in New York, U. S.A. naming private respondent Rowena
Faustino-Corona executrix. In said decision, the court upheld the
appointment of Nenita Alonte as co-special administrator of Mrs. Vitugs
estate with her (Mrs. Vitugs) widower, petitioner Romarico G. Vitug,
pending probate.
Romarico G. Vitug filed a motion asking for authority from the probate
court to sell certain shares of stock and real properties belonging to the
estate to cover allegedly his advances to the estate, plus interests, which
he claimed were personal funds. As found by the CA the alleged
advances were spent for the payment of estate tax, deficiency estate tax,
and increment thereto.
Rowena Corona opposed the motion to sell on the ground that the same
funds withdrawn were conjugal partnership properties and part of the
estate, and hence, there was allegedly no ground for reimbursement.
She also sought his ouster for failure to include the sums in question for
inventory and for concealment of funds belonging to the estate.
Vitug insists that the said funds are his exclusive property having
acquired the same through a survivorship agreement executed with his
late wife and the bank.
The trial courts upheld the validity of such agreement.
On the other hand, the CA held that the survivorship agreement
constitutes a conveyance mortis causa which did not comply with the
formalities of a valid will as prescribed by Article 805 of the Civil Code,
and secondly, assuming that it is a mere donation inter vivos, it is a
prohibited donation under the provisions of Article 133 of the Civil Code.
ISSUE: W/N the survivorship agreement between the spouses Vitug
constitutes a donation?
HELD: NO. The conveyance in question is not, first of all, one of mortis
causa, which should be embodied in a will. A will has been defined as a
personal, solemn, revocable and free act by which a capacitated person
disposes of his property and rights and declares or complies with duties
to take effect after his death. In other words, the bequest or device must
pertain to the testator. In this case, the monies subject of savings account
No. 35342-038 were in the nature of conjugal funds In the case relied on,
Rivera v. Peoples Bank and Trust Co., we rejected claims that a
survivorship agreement purports to deliver one partys separate
properties in favor of the other, but simply, their joint holdings.
There is no showing that the funds exclusively belonged to one party,
and hence it must be presumed to be conjugal, having been acquired
during the existence of the marital relations.
Neither is the survivorship agreement a donation inter vivos, for obvious
reasons, because it was to take effect after the death of one party.
Secondly, it is not a donation between the spouses because it involved
no conveyance of a spouses own properties to the other.
It is also our opinion that the agreement involves no modification petition
of the conjugal partnership, as held by the Court of Appeals, by mere
stipulation and that it is no cloak to circumvent the law on conjugal
property relations. Certainly, the spouses are not prohibited by law to
invest conjugal property, say, by way of a joint and several bank account,
more commonly denominated in banking parlance as an and/or
account. In the case at bar, when the spouses Vitug opened savings
account No. 35342-038, they merely put what rightfully belonged to them
in a money-making venture. They did not dispose of it in favor of the
other, which would have arguably been sanctionable as a prohibited
donation.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death a
vested right over the amounts under savings account No. 35342-038 of
the Bank of America. Insofar as the respondent court ordered their
inclusion in the inventory of assets left by Mrs. Vitug, we hold that the
court was in error. Being the separate property of petitioner, it forms no
more part of the estate of the deceased.

Vitug vs. CA Digest
Vitug v. Court of Appeals

Facts:
1. The case is a chapter in an earlier suit involving the issue on two (2)
wills of the late Dolores Vitug who died in New York, USA in Nov 1980.
She named therein private respondent Rowena Corona (Executrix) while
Nenita Alonte was co-special administrator together with petitioner
Romarico pending probate.

2. In January 1985, Romarico filed a motion asking for authorization of
the probate court to sell shares of stocks and real property of the estate
as reimbursements for advances he made to the estate. The said amount
was spent for payment of estate tax from a savings account in the Bank
of America.

3. Rowena Corona opposed the motion to sell contending that from the
said account are conjugal funds, hence part of the estate. Vitug insisted
saying that the said funds are his exclusive property acquired by virtue of
a survivorship agreement executed with his late wife and the bank
previously. In the said agreement, they agreed that in the event of death
of either, the funds will become the sole property of the survivor.

4. The lower court upheld the validity of the survivorship agreement and
granted Romarico's motion to sell. The Court of Appeals however held
that said agreement constituted a conveyance mortis causa which did not
comply with the formalities of a valid will. Further, assuming that it is
donation inter vivos, it is a prohibited donation. Vitug petitioned to the
Court contending that the said agreement is an aleatory contract.

Issue: Whether or not the conveyance is one of mortis causa hence
should conform to the form required of wills

NO. The survivorship agreement is a contract which imposed a mere
obligation with a term--being death. Such contracts are permitted under
Article 2012 on aleatory contracts. When Dolores predeceased her
husbandm the latter acquired upon her death a vested right over the
funds in the account. The conveyance is therefore not mortis causa.













Suroza v. Honrado
FACTS:
Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared
a boy named Agapito. Agapito and his wife Nenita de Vera had a daughter named
Lilia. Nenita became Agapitos guardian when he became disabled. A certain
Arsenia de la Cruz also wanted to be his guardian in another proceeding but it was
dismissed. Arsenia then delivered a child named Marilyn Sy to Marcelina who
brought her up as a supposed daughter of Agapito. Marilyn used the surname
Suroza although not legally adopted by Agapito. When Marcelina (who was an
illiterate) was 73 years old, she supposedly executed a notarial will which was in
English and thumbmarked by her. In the will, she allegedly bequeathed all her
properties to Marilyn. She also named as executrix her laundrywoman, Marina Paje.
Paje filed a petition for probate of Marcelinas will. Judge Honrado appointed Paje
as administratrix and issued orders allowing the latter to withdraw money from the
savings account of Marcelina and Marilyn, and instructing the sheriff to eject the
occupants of testatrixs house, among whom was Nenita. She and the other
occupants filed a motion to set aside the order ejecting them, alleging that Agapito
was the sole heir of the deceased, and that Marilyn was not the decedents
granddaughter. Despite this, Judge Honrado issued an order probating Marcelinas
will.
Nenita filed an omnibus petition to set aside proceedings, admit opposition with
counter-petition for administration and preliminary injunction, and an opposition to
the probate of the will and a counter-petition for letters of administration, which
were dismissed by Judge Honrado. Instead of appealing, Nenita filed a case to annul
the probate proceedings but Judge Honrado dismissed it. The judge then closed the
testamentary proceeding after noting that the executrix had delivered the estate to
Marilyn, and that the estate tax had been paid.
Ten months later, Nenita filed a complaint before the SC, charging Judge
Honrado with having probated the fraudulent will of Marcelina. She reiterated her
contention that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in which the
will was written. She further alleged that Judge Honrado did not take into account
the consequences of the preterition of testatrixs son, Agapito. Judge Honrado in his
comment did not deal specifically with the allegations but merely pointed to the
fact that Nenita did not appeal from the decree of probate and that in a motion, she
asked for a thirty day period within which to vacate the house of the testatrix.
Nenita subsequently filed in the CA a petition for certiorari and prohibition against
Judge Honrado wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void. The CA dismissed the petition
because Nenitas remedy was an appeal and her failure to do so did not entitle her
to resort to the special civil action of certiorari. Relying on that decision, Judge
Honrado filed a MTD the administrative case for having allegedly become moot and
academic.
ISSUE:
W/N disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language
not known to the illiterate testatrix, and which is probably a forged will because she
and the attesting witnesses did not appear before the notary as admitted by the
notary himself.
HELD:
YES. 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. In the opening paragraph of the will, it was
stated that English was a language understood and known to the testatrix. But in
its concluding paragraph, it was stated that the will was read to the testatrix and
translated into Filipino language. That could only mean that the will was written in
a language not known to the illiterate testatrix and, therefore, it is void because of
the mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator.
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred
to as the testator instead of testatrix. Had respondent judge been careful and
observant, he could have noted not only the anomaly as to the language of the will
but also that there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by the deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness. In spite of
the absence of an opposition, respondent judge should have personally conducted
the hearing on the probate of the will so that he could have ascertained whether
the will was validly executed.

PAYAD,vs.TOLENTINO,
FACTS:
Both parties in this case appeal from an order of the trial court denying
the probate of the alleged will of Leoncia Tolentino, deceased on the
ground that the attestation clause wasnot in conformity with the
requirements of law in that it is not stated therein that the testatrixcaused
Attorney Almario to write her name at her express direction.
ISSUE:
Whether the attestation clause does not state that the testratrix requested
AttorneyAlmario to write her name.
HELD:
The evidence of record established the fact that Leoncia Tolentino,
assisted by AttorneyAlmario, placed her thumb mark on each and every
age of time questioned will and the saidattorney merely wrote her name
to indicate the place where she placed said thumb mark. Inother words
Attorney Almario did not sign for the testatrix. She signed for placing her
thumbmark on each and every page thereof "A statute requiring a will to
be 'signed' is satisfied if thesignature is made by the testator's mark." It is
clear, therefore, that it was not necessary that theattestation clause in
question should state that the testatrix requested Attorney Almario to
signher name inasmuch as the testratrix signed the will in question in
accordance with law.The appealed order of the trial court is reversed and
the questioned will of Leoncia Tolentino,deceased is admitted to probate.


Garcia v. Lacuesta
90:489 | Castillo

FACTS:
This case involves the will of Antero Mercado, which among other defects
was signed by the testator through a cross mark (an X). The will was signed by
Atty. Javier who wrote the name of Mercado as testator and the latter allegedly
wrote a cross mark after his name. The CFI allowed the will but the CA disallowed it
because its attestation clause was defective for failing to certify 1) that the will was
signed by Atty. Javier at the express direction of the testator, 2) that the testator
wrote a cross at the end of his name after Atty. Javier signed for him, and 3) that
the 3 witnesses signed the will in the presence of the testator and of each other.

ISSUE:
Whether the will should be allowed despite the defect of the attestation clause
since the testator had placed a cross mark himself as his signature.
HELD:
The attestation clause is fatally defective for failing to state that Mercado
directed Javier to write the testators name under his express direction. Petitioners
argument that such recital is unnecessary because the testator signed the will
himself using a cross mark which should be considered the same as a thumb-mark
(which has been held sufficient in past cases) is not acceptable. A cross mark is not
the same as a thumb mark, because the cross mark does not have the same
trustworthiness of a thumb mark.



Garcia v. Lacuesta Digest
Garcia v. Lacuesta
G.R. L-4067 November 29, 1951
Ponente: Paras, C.J.

Facts:
1. The CA disallowed the probate of the will of Antero Mercado dated Jan
1943. The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who
wrote the name of the testator followed below by 'A ruego del testador'
and the name of Florentino Javier. In effect, it was signed by another
although under the express direction of the testator. This fact however
was not recited in the attestation clause. Mercado also affixed a cross on
the will.

3. The lower court admitted the will to probate but this order was reversed
by the Court of Appeals on the ground that the attestation failed to recite
the facts surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state that
Antero or the testator caused Atty. Javier to write the former's name
under his express direction as required by Sec. 618 of the Civil
Procedure. Finally, on the cross affixed on the will by the testator, the
Court held that it is not prepared to liken the mere sign of a cross to a
thumbmark for obvious reasons- the cross does not have the
trustworthiness of a thumbmark so it is not considered as a valid
signature.



Garcia v. Lacuesta

90 Phil 189 Succession Signing Using an X Mark
Antero Mercado left a will dated January 3, 1943. The will appears to
have been signed by Atty. Florentino Javier as he wrote the name of
Antero Mercado and his name for the testatior on the will. HOWEVER,
immediately after Antero Mercados will, Mercado himself placed an X
mark.
The attestation clause was signed by three instrumental witnesses. Said
attestation clause states that all pages of the will were signed in the
presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
The attestation clause however did not indicate that Javier wrote Antero
Mercados name.
ISSUE: Whether or not the will is valid.
HELD: No. The attestation clause is fatally defective for failing to state
that Antero Mercado caused Atty. Florentino Javier to write the testators
name under his express direction, as required by Section 618 of the
Code of Civil Procedure.
But is there really a need for such to be included in the attestation clause
considering that even though Javier signed for Antero, Antero himself
placed his signature by virtue of the X mark, and by that, Javiers
signature is merely a surplusage? That the placing of the X mark is the
same as placing Anteros thumb mark.
No. Its not the same as placing the testators thumb mark. It would have
been different had it been proven that the X mark was Anteros usual
signature or was even one of the ways by which he signs his name. If this
were so, failure to state the writing by somebody else would have been
immaterial, since he would be considered to have signed the will himself.






Barut v. Cabacungan
21:461 | Casuela

FACTS:
Barut applied for the probate of the will of deceased, Maria Salomon. The
testatrix stated in the will that being unable to read or write, the will was read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo
Agayan to sign her name to it as testatrix. The probate was contested by a number
of the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to probate because
the handwriting of the person who it is alleged signed the name of the testatrix to
the will for and on her behalf looked more like the handwriting of one of the other
witnesses to the will than to the person whose handwriting it was alleged to be
(i.e. The probate court denied probate because the signature seemed to not have
been by Severo Agayan but by another witness).

ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of the will?

HELD:
No. The SC found that the mere dissimilarity in writing is sufficient to
overcome the uncontradicted testimony of all the witnesses that the signature of
the testatrix was written by Severo Agayan. It is also immaterial who writes the
name of the testatrix provided it is written at her request and in her presence and
in the presence of all the witnesses to the execution of the will.
Based on Section 618 of the Code of Civil Procedure, it is clear that with
respect to the validity of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing is that it clearly
appears that the name of the testatrix was signed at her express direction in the
presence of 3 witnesses and that they attested and subscribed it in her presence
and in the presence of each other. It may be wise that the one who signs the
testators name signs also his own; but that is not essential to the validity of the
will.
The court also held that the 3 cases cited by the lower court was not
applicable. In those cases, the person who signed the will for the testator wrote his
own name instead of the testators, so that the testators name nowhere appeared
in the will, and were thus wills not duly executed.
Barut v. Cabacungan Digest
Barut vs. Cabacungan
G.R. L-6825 Febriary 15, 1912
Ponente: SC Justice Moreland

Facts:
1.Pedro Barut applied for the probate of the will of Maria Salomon. It is
alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur
leaving the will dated March 3, 1907. The said will was witnessed by 3
persons. From the terms it appears that the petitioner received a larger
part of decedent's property. After this disposition, the testatrix revoked all
other wills and stated that since she is unable to read nor write, the will
was read to her and that she has instructed Severino Agapan, one of the
witnesses to sign her name in her behalf.

2. The lower court ruled that the will is not entitled to probate on the sole
ground that the handwriting of the person who signed the name of the
testatrix does not appear to be that of Agapan but that of another
witness.

Issue: Whether or not a will's validity is affected when the person
instructed by a testator to write his name did not sign his name

HELD: No, it is immaterial who wrote the name of the testator provided it
is written at her request and in her present, and in the presence of the
witnesses. This is the only requirement under Sec. 618 of the Civil Code
of procedure at that time.




Icasiano v. Icasiano
FACTS:
Celso Icasiano filed a petition for the allowance and admission to probate
of the alleged will of Josefa Villacorte, and for his appointment as executor thereof.
Natividad and Enrique Icasiano, a daughter and son of the testatrix, filed their
opposition thereto. During the course of the trial, on 19 March 1959, Celso, started
to present his evidence. But later, on 1 June 1959, he then filed an amended and
supplemental petition, alleging that the decedent had left a will executed in
duplicate and with all the legal requirements, and that he was submitting the
duplicate to the court, which he found only on 26 May 1959. Natividad and Enrique
filed their opposition, but the will and its duplicate was admitted to probate by the
trial court. Hence, this appeal by the oppositors.
Oppositors-appellants (Natividad and Enrique) in turn introduced expert
testimony to the effect that the signatures of the testatrix in the duplicate 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.
ISSUE:
Was the trial court correct in admitting the will and its duplicate to probate given
the allegations of forgery of the testators signature, or that the will was executed
under circumstances constituting fraud and undue influence and pressure?

(Not raised by the appellants in the case but discussed by the Court and in Sirs
book) Is the failure of one of the witnesses to sign a page of the will fatal to its
validity?
HELD:
The Supreme Court dismissed the appeal, holding that both the will and its
duplicate are valid in all respects.

On the allegations of forgery, fraud and undue influence:
The Court is satisfied that all the requisites for the validity of a will have
been complied with. The opinion of a handwriting expert trying to prove forgery of
the testatrix's signature failed 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.
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, the testimony of the oppositor's expert is
insufficient to overcome that of the notary and the two instrumental witnesses as
to the wills execution, which were presented by Celso during the trial.
Nor is there adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither. 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 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.

Abangan vs. Abangan Digest
Abangan v. Abangan

Facts:
1. On September 1917, the CFI of Cebu admitted to probate Ana
Abangan's will executed on July 1916. It is from this decision which the
opponent appealed. It is alleged that the records do not show the testatrix
knew the dialect in which the will was written.

Issue: Whether or not the will was validly probated

YES. The circumstance appearing on the will itself, that it was executed
in Cebu City and in the dialect of the place where the testarix is a
resident is enough to presume that she knew this dialect in the absence
of any proof to the contrary. On the authority of this case and that of
Gonzales v Laurel, it seems that for the presumption to apply, the
following must appear: 1) that the will must be in a language or dialect
generally spoken in the place of execution, and, 2) that the testator must
be a native or resident of the said locality
Abangan v Abangan
Trial Court admitted Ana Abangansprobate.
The will is described in thefollowing manner:

First sheet:
Contains all the disposition ofthe testatrix.
Signed
at the bottom
byMartin Montalban (in thename and under the directionof Ana Abangan)

Signed by three witnesses
Second sheet

Contains only the attestationclause.
Duly signed by the same threewitnesses at the bottom.

Was not signed by thetestatrix herself
Anastacia Abangan (differentperson) et al. appealed from thisdecision. She
says that the probateshould have been denied on threegrounds:
Neither of the sheets weresigned
on the left margin
bythe testatrix and the threewitnesses

The pages were notnumbered by letters
It was written in a dialect that the testatrix did not understand.
Issue: WON the probate should have be admitted.
Ruling: Yes. The trial court was correct in admitting the probate.
1. Re: signing on the left margin- The object of Act 2645, which requires
that every sheet should be signed on the left margin, is only to avoid the
substitution of any sheet, thereby changing the dispositions of the testatrix.- Act
2645 only took into consideration cases of wills written on several sheets, which did
not have to be signed at the bottom by the testator and the witnesses.- But when
the dispositions are duly written only on one sheet, and signed at the bottom by the
testator and the witnesses ,the signatures on the left would be purposeless.- If the
signatures at the bottom already guarantee its authenticity, another signature on
the left margin would be unnecessary.- This interpretation of Act 2645 also applies
to the page containing the attestation clause (the second sheet). Such a signature
on the margin by the witnesses would be a formality not required by the statute.- It
is also not required that the testatrix sign on the attestation clause because the
attestation, as its name implies, appertains only to the witnesses and not the
testator since the testator does attest, but executes the will.2. Re: Page numbering-
Act 2645s object in requiring this
was to know whether any sheet of the willhas been removed.- But when
all the dispositive partsof the will are written on one sheet only, theobject of the
Act 2645 disappears becausethe removal of this single sheet althoughunnumbered,
cannot be hidden.3. Re: dialect- The circumstance appearing in thewill itself that
the same was executed in thecity of Cebu and in the dialect of thislocality where
the testatrix was a neighbor
Cagro v. Cagro
FACTS:
Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly
made a will prior to his death, the will was probated before the CFI of Samar.
However, the oppositors-appellant objected the probate proceeding alleging that
the will is fatally defective because its attestation clause is not signed by the
attesting witnesses. It is undisputed 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.

ISSUE:
W/N the will may be probated even if the signatures of the witnesses do not appear
at the bottom of the attestation clause, and instead, they were placed on the left-
hand margin of the page containing the same.

HELD:
No. The position taken by the oppositor-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-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.

Nera v. Rimando
18:450 | Cukingnan

FACTS:
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is whether
one of the subscribing witnesses was present in the small room where it was
executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at 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.

HELD:
Citing Jaboneta v. Gustilo, the court held that 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.
The question is whether the testator and the subscribing witnesses to an
alleged will signed 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. To
extend the doctrine further would open the door to the possibility of all manner of
fraud, substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in the
execution of a will.
Nera v. Rimando
G.R. L-5971 February 27, 1911
Ponente: Carson, J.:

'Test of Presence'

Facts:
1. At the time the will was executed, in a large room connecting
with a smaller room by a doorway where a curtain hangs
across, one of the witnesses was in the outside room when the
other witnesses were attaching their signatures to the
instrument.

2. The trial court did not consider the determination of the issue
as to the position of the witness as of vital importance in
determining the case. It agreed with the ruling in the case of
Jaboneta v. Gustillo that the alleged fact being that one of the
subscribing witnesses was in the outer room while the signing
occurred in the inner room, would not be sufficient to invalidate
the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see
the testator and other witnesses in the act of affixing their
signatures.

HELD: YES
The Court is unanimous in its opinion that had the witnesses
been proven to be in the outer room when the testator and other
witnesses signed the will in the inner room, it would have
invalidated the will since the attaching of the signatures under
the circumstances was not done 'in the presence' of the
witnesses in the outer room. The line of vision of the witness to
the testator and other witnesses was blocked by the curtain
separating the rooms.

The position of the parties must be such that with relation to
each other at the moment of the attaching the signatures, they
may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or
not they actualy saw each other sign but whether they might
have seen each other sign if they chose to doso considering
their physical, mental condition and position in relation to each
other at the moment of the inscription of the signature.

Cruz v. Villasor
FACTS:
The CFI of Cebu allowed the probate of Valente Z. Cruzs last will and
testament. His surviving spouse, Agapita Cruz, opposed the allowance of the will
alleging it was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having been
fully informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed in
accordance with law. Agapita appealed the allowance of the will by certiorari.

ISSUE:
W/N the will was executed in accordance with law (particularly Articles 805 and 806
of the NCC, 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.).

HELD:
NO. Of the three instrumental witnesses to the will, one of them (Atty.
Teves) is at the same time the Notary Public before whom the will was supposed to
have been acknowledged. 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; Castro v. Castro); to own as genuine,
to assent, to admit; and "before" means in front or preceding in space or ahead of.
Consequently, if the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself. This cannot be
done because he cannot split his personality into two so that one will appear before
the other to acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the
function of a notary public is, among others, to guard against any illegal or immoral
arrangement (Balinon v. De Leon). That function would defeated if the notary public
were one of the attesting instrumental witnesses. It would place him in inconsistent
position and the very purpose of acknowledgment, which is to minimize fraud,
would be thwarted.
Admittedly, there are American precedents holding that notary public may,
in addition, act as a witness to the executive of the document he has notarized.
There are others holding that his signing merely as notary in a will nonetheless
makes him a witness thereon. 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 these cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. Here, the
notary public acted not only as attesting witness but also acknowledging witness, a
situation not envisaged by Article 805-06. Probate of will set aside.
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:

Facts:
1. The CFI of Cebu allowed the probate of the last will and
testament of the late Valenti Cruz. However, the petitioner
opposed the allowance of the will alleging that it was executed
through fraud, deceit, misrepresentation, and undue influence.
He further alleged that the instrument was executed without the
testator having been informed of its contents and finally, that it
was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary
before whom the will was acknowledged. Despite the objection,
the lower court admitted the will to probate on the ground that
there is substantial compliance with the legal requirements of
having at least 3 witnesses even if the notary public was one of
them.

Issue: Whether or not the will is valid in accordance with Art.
805 and 806 of the NCC

HELD: NO.
The will is not valid. The notary public cannot be considered as
the third instrumental witness since he cannot acknowledge
before himself his having signed the said will. An acknowledging
officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine,
to assent, admit, and 'before' means in front of or preceding in
space or ahead of. The notary cannot split his personality into
two so that one will appear before the other to acknowledge his
participation int he making of the will. To permit such situation
would be absurd.

Finally, the function of a notary among others is to guard against
any illegal or immoral arrangements, a function defeated if he
were to be one of the attesting or instrumental witnesses. He
would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act. he would
be in an inconsistent position, thwarting the very purpose of the
acknowledgment, which is to minimize fraud.











J avellana v. Ledesma
FACTS:
The Court of First Instance of Iloilo admitted to probate the documents in
the Visayan dialectas the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as
witnesses. The contestant, Matea Ledesma, sister and nearest surviving relative of
said deceased, appealed from the decision, insisting that the said exhibits were not
executed in conformity with law. Ledesma is questioning the validity of the codicil
contending that the fact that the notary did not sign the instrument in the presence
of the testator and the witness made the codicil was not executed in conformity
with the law

ISSUE:
W/N the codicil was validly executed.

HELD:
The instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was signed and
sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea
affirmed that he did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily imply conscious perversion of
truth on the part of the witnesses, but appears rather due to a well-established
phenomenon, the tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it.
Whether or not the notary signed the certification of acknowledgment in
the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. The new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses
sign in the presence of each other, all that is thereafter required is that "every will
must be acknowledged before a notary public by the testator and the witnesses"
(Art. 806); i.e., that the latter should avow to the certifying officer the authenticity
of their signatures and the voluntariness of their actions in executing the
testamentary disposition. This was done in this case. The subsequent signing and
sealing by the notary of his certification that the testament was duly acknowledged
by the participants therein is no part of the acknowledgment itself nor of the
testamentary act. Hence their separate execution out of the presence of the
testatrix and her witnesses cannot be said to violate the rule that testaments
should be completed without interruption. It is noteworthy that Article 806 of the
new Civil Code does not contain words requiring that the testator and the witnesses
should acknowledge the testament on the same day or occasion that it was
executed.

Avera vs. Garcia and Rodriguez
Facts:In proceedings in the court below, instituted by Eutiquia Avera for
probate of the will of oneEsteban Garcia, contest was made by Marino
Garcia and Juan Rodriguez, the latter in thecapacity of guardian for the
minors Jose Garcia and Cesar Garcia. Upon the date appointed forthe
hearing, the proponent of the will introduced one of the three attesting
witnesses whotestified

with details not necessary to be here specified

that the will was executed with allnecessary external formalities, and that
the testator was at the time in full possession of disposing faculties. Upon
the latter point the witness was corroborated by the person whowrote the
will at the request of the testator. Two of the attesting witnesses were
notintroduced, nor was their absence accounted for by the proponent of
the will.When the proponent rested the attorney for the opposition
introduced a single witness whosetestimony tended to show in a vague and
indecisive manner that at the time the will was madethe testator was so
debilitated as to be unable to comprehend what he was about.After the
cause had been submitted for determination upon the proof thus
presented, the trial judge found that the testator at the time of the making
of the will was of sound mind anddisposing memory and that the will had
been properly executed. He accordingly admitted thewill to probate.Issue:1)
whether a will can be admitted to probate, where opposition is made, upon
the proof of asingle attesting witness, without producing or accounting for
the absence of the other two2) whether the will in question is rendered
invalid by reason of the fact that the signature of thetestator and of the
three attesting witnesses are written on the right margin of each page of
thewill instead of the left marginRuling:1) When the petition for probate of
a will is contested, the proponent should introduce all threeof the attesting
witnesses, if alive and within reach of the process of the court; and
theexecution of the will cannot be considered sufficiently proved by the
testimony of only one,without satisfactory explanation of the failure to
produce the other two.


Garcia v. Vasquez
G.R. No. L-26808 March 28, 1969
Fernando, J (Ponente)

Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956,
written in Spanish, a language she knew an spoke. The other
will was executed in December 1960 consisting of only one
page, and written in Tagalog. The witnesses to the 1960 will
declared that the will was first read 'silently' by the testatrix
before signing it. The probate court admitted the will.

2. The oppositors alleged that the as of December 1960, the
eyesight of the deceased was so poor and defective that she
could not have read the provisions contrary to the testimony of
the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of
the New Civil Code (NCC) should apply.If the testator is blind or
incapable of reading, he must be apprised of the contents of the
will for him to be able to have the opportunityto object if the
provisions therein are not in accordance with his wishes.

The testimony of her opthalmologist established that
notwithstanding an operation to remove her cataract and being
fitted with the lenses, this did not improve her vision. Her vision
remained mainly for viewing distant objects and not for reading.
There was no evidence that her vision improved at the time of
the execution of the 2nd will. Hence, she was incapable of
reading her own will. The admission of the will to probate is
therefor erroneous.



Garcia v. Vasquez
FACTS:
This is a petition for appeal from the CFI of Manila admitting to probate
the will of Gliceria Avelino del Rosario (Gliceria) executed in 1960. Likewise, this is
also an appeal to remove the current administrator, Consuelo Gonzales-Precilla(
Consuelo) as special administratrix of the estate on the ground of Consuelo
possesses interest adverse to the estate and to order the RD of Manila to annotate
on the registered lands a notice of Lis Pendens.
When Gliceria died she had no descendants, ascendants, bros or sisses
and 90 yrs old. After which, her niece, Consuelo petitioned the court to be the
administratrix of the properties. The court approved this because Consuelo has
been was already managing the properties of the deceased during her lifetime.
What the respondents allege is that in the last years of the deceased, Consuelo
sought the transfer of certain parcels of land valued at 300k for a sale price of 30k
to her husband Alfonso through fraud and intimidation. In addition, the oppositors
presented evidence that Consuelo asked the court to issue new Certificates of Titles
to certain parcels of land for the purpose of preparing the inventory to be used in
the probate. Also shown was that NEW TCTs were issued by the RD for certain lands
of the deceased after Consuelo asked for the old TCTs.
At the end of the probate proceedings, the court ruled that Counsuelo
should be made the administrator, and that the will was duly executed because of
these reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that the deceased
was not of sound mind, that eventough the allegations state that the deceased
prepared another will in 1956 (12pages), the latter is not prevented from executing
another will in 1960 (1page), and that inconsistencies in the testimonies of the
witnesses prove their truthfulness.

ISSUE:
Was the will in 1960 (1 page) duly/properly executed?

HELD:
NO. Provision of Article 808 mandatory. Therefore, For all intents and
purposes of the rules on probate, the testatrix was like a blind testator, and the due
execution of her will would have required observance of Article 808. 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. Likewise, the 1970 will was done in Tagalog which the
deceased is not well versed but in Spanish. This creates doubt as to the due
execution of the will and as well as the typographical errors contain therein which
show the haste in preparing the 1 page will as compared to the 12 page will created
in 1956 written in Spanish. ALSO, as to the blindness, there was proof given by the
testimony of the doctor that the deceased could not read at near distances because
of cataracts. (Testatrixs vision was mainly for viewing distant objects and not for
reading print.) Since there is no proof that it was read to the deceased twice, the
will was NOT duly executed.
ALSO, Consuelo should be removed as administrator because she is not
expected to sue her own husband to reconvey the lands to the estate alleged to
have been transferred by the deceased to her own husband.
The notice of lis pendens is also not proper where the issue is not an action
in rem, affecting real property or the title thereto.










Alvarado v. Gaviola
226 SCRA 347 | JEN SUCCESSION REVIEWER

FACTS:
On 5 November 1977, 79-year old Brigido Alvarado executed a notarial
will entitled Huling Habilin wherein he disinherited an illegitimate son, petitioner
Cesar Alvarado, and expressly revoked a previously executed holographic will at the
time awaiting probate before the RTC of Laguna.
According to Bayani Ma. Rino, private respondent, he was present when
the said notarial will was executed, together with three instrumental witnesses and
the notary public, where the testator did not read the will himself, suffering as he
did from glaucoma.
Rino, a lawyer, drafted the eight-page document and read the same aloud
before the testator, the three instrumental witnesses and the notary public, the
latter four following the reading with their own respective copies previously
furnished them.
Thereafter, a codicil entitled Kasulatan ng Pagbabago ng 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 testators eye operation.
Said codicil was likewise not read by Brigido Alvarado and was read in the
same manner as with the previously executed will.
When the notarial will was submitted to the court for probate, Cesar
Alvarado filed his opposition as he said that the will was not executed and attested
as required by law; that the testator was insane or mentally incapacitated 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 pressure and influence on the part of the
beneficiary; and that the signature of the testator was procured by fraud or trick.


ISSUE:
W/N notarial will of Brigido Alvarado should be admitted to probate despite
allegations of defects in the execution and attestation thereof as testator was
allegedly blind at the time of execution and the double-reading requirement under
Art. 808 of the NCC was not complied with.

HELD:
YES. The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial requirements of
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 testators will.
Cesar Alvardo was correct in asserting that his father was not totally blind
(of counting fingers at 3 feet) when the will and codicil were executed, but he can
be so considered for purposes of Art. 808.
That Art. 808 was not followed strictly is beyond cavil.
However, in the case at bar, there was substantial compliance where the
purpose of the law has been satisfied: that of making the provisions known to the
testator who is blind or incapable of reading the will himself (as when he is
illiterate) and enabling him to object if they do not accord with his wishes.
Rino read the testators 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 acknowledgment take place.
There is no evidence that the contents of the will and the codicil were not
sufficiently made known and communicated to the testator.
With four persons, mostly known to the testator, 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.
The rationale behind the requirement of reading the will to the testator if
he is blind or incapable of reading the will to 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.
Although there should be strict compliance with the substantial
requirements of 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 testators will.
Caneda v. CA
FACTS:
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 before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of legacies
and devises his real and personal properties to several people all of whom do not
appear to be related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the probate of
his last will and testament, but numerous postponements pushed back the initial
hearing of the probate court regarding the will.
On May 29, 1980, the testator passed away before his petition could finally
be heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment as
special administrator of the testators estate.
Thereafter, the petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition for intestate proceedings. They also opposed
the probate of the testators will and the appointment of a special administrator for
his estate.
Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for the probate of the
will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance of
the testators will on the ground that on the alleged date of its execution, the
testator was already in poor state of health such that he could not have possibly
executed the same. Also the genuineness of the signature of the testator is in
doubt.
On the other hand, one of the attesting witnesses and the notary public
testified that the testator executed the will in question in their presence while he
was of sound and disposing mind and that the testator was in good health and was
not unduly influenced in any way in the execution of his will.
Probate court then rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero.
CA affirmed the probate courts decision stating that it substantially
complies with Article 805. Hence this appeal.

ISSUE:
W/N the attestation clause in the will of the testator is fatally defective or can be
cured under the art. 809.

HELD:
No. It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will must
be acknowledged before a notary public by the testator and the attesting
witnesses. The attestation clause need not be written in a language known to the
testator or even to the attesting witnesses.
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.
The attestation clause, therefore, provides strong legal guaranties for the
due execution of a will and to insure the authenticity thereof.
It is contended by petitioners that the attestation clause in the will failed
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. And the Court agrees.
The attestation clause 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
space 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.
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. That 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
probated.
Also, Art. 809 does not apply to the present case because 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 in this case
is not only with respect to the form or the language of the attestation clause. The
defects must be remedied by intrinsic evidence supplied by the will itself which is
clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the intestate
proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when it does not
pertain to the form or language of the will. This is because there is not substantial
compliance with Article 805.