8.

ACKNOWLEDGED BEFORE A NOTARY PUBLIC

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J .:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing
the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant
Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the
will (Exhibit "E"), alleging the will 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. Notwithstanding her objection, the Court allowed the probate of
the said last will and testament Hence this appeal by certiorari which was given due
course.
The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E")
was executed in accordance with law, particularly Articles 805 and 806 of the new Civil
Code, the first requiring at least three credible witnesses to attest and subscribe to the
will, and the second requiring the testator and the witnesses to acknowledge the will
before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed by
at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B.
Lugay, who is the supposed executor of the will, following the reasoning of the trial
court, maintains that there is substantial compliance with the legal requirement of
having at least three attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against
the purely technical reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the testator's signature
under oath rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To acknowledge before means
to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247);
to own as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language,
p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third
witness were the notary public himself, he would have to avow assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split
his personality into two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any
illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would
defeated if the notary public were one of the attesting instrumental witnesses. For them
he would be interested sustaining the validity of the will as it directly involves him and
the validity of his own act. It would place him in inconsistent position and the very
purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p.
106-107), 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. (Mahilum v. Court
Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641;
Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's
Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15
So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or
are not decisive of the issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and
not as acknowledging witnesses. He the notary public acted not only as attesting
witness but also acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to
retain a copy of the will or file another with the office of the Clerk of Court.
[Emphasis supplied]
To allow the notary public to act as third witness, or one 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 80 be requiring at
least three credible witnesses to act as such and of Article 806 which requires that the
testator and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses
appeared before the notary public for or that purpose. In the circumstances, the law
would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.







Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J .:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the
documents in the Visayan dialect, marked Exhibits D and E, as 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, Da. 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. The appeal was made
directly to this Court because the value of the properties involved exceeded two
hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue influence.
These grounds were abandoned at the hearing in the court below, where the issue was
concentrated into three specific questions: (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the notary without
the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective. These questions are the same ones presented
to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses
Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased
Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente
Yap (one of the witnesses to the will) inform the deceased that he had brought the
"testamento" and urge her to go to attorney Tabiana's office to sign it; that Da.
Apolinaria manifested that she could not go, because she was not feeling well; and that
upon Yap's insistence that the will had to be signed in the attorney's office and not
elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and
returned it with the statement that no one would question it because the property
involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial
Court's rejection of the improbable story of the witnesses. It is squarely contradicted by
the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon
Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was
executed by testatrix and witnesses in the presence of each other, at the house of the
decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have insisted that Da.
Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to
execute her will, when all three witnesses could have easily repaired thither for the
purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of
Contestant's witnesses. Both claim to have heard the word "testamento" for the first
time when Yap used it; and they claimed ability to recall that word four years later,
despite the fact that the term meant nothing to either. It is well known that what is to be
remembered must first be rationally conceived and assimilated (II Moore on Facts, p.
884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the
deceased alone signed it, precisely on March 30, 1950; but she could remember no
other date, nor give satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly transpired between Yap and
Da. Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen. Later,
on redirect examination, Allado sought to cure his testimony by claiming that he was
upstairs in a room where the servants used to eat when he heard Yap converse with his
mistress; but this correction is unavailing, since it was plainly induced by two highly
leading questions from contestant's counsel that had been previously ruled out by the
trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of
service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses
urged upon us by the contestant-appellant, concerning the presence or absence of
Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the
person who inserted the date therein, are not material and are largely imaginary, since
the witness Mrs. Tabiana confessed inability to remember all the details of the
transaction. Neither are we impressed by the argument that the use of some Spanish
terms in the codicil and testament (likelegado, partes iguales, plena propiedad) is proof
that its contents were not understood by the testatrix, it appearing in evidence that those
terms are of common use even in the vernacular, and that the deceased was a woman
of wide business interests.
The most important variation noted by the contestants concerns that signing of the
certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit
E. Unlike the testament, this codicil was executed after the enactment of the new Civil
Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now,
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
(II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, 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. Unlike the Code of 1889 (Art. 699), 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 the case before us.
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 can not be said to violate the rule that testaments should
be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the
Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible
error was committed by the Court in so holding. 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.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, and Concepcion, JJ.,concur.






THIRD DIVISION
[G. R. No. 123968. April 24, 2003]
URSULINA GANUELAS, METODIO GANUELAS and ANTONIO
GANUELAS, vs. HON. ROBERT T. CAWED, Judge of the Regional Trial
Court of San Fernando, La Union (Branch 29), LEOCADIA G. FLORES,
FELICITACION G. AGTARAP, CORAZON G. SIPALAY and ESTATE OF
ROMANA GANUELAS DE LA ROSA, represented by GREGORIO DELA
ROSA, Administrator, respondent.
D E C I S I O N
CARPIO-MORALES, J .:
The present petition for review under Rule 45 of the Rules of Court assails, on a
question of law, the February 22, 1996 decision
[1]
of the Regional Trial Court of San
Fernando, La Union, Branch 29, in Civil Case No. 3947, an action for declaration of
nullity of a deed of donation.
The facts, as culled from the records of the case, are as follows:
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a Deed
of Donation of Real Property
[2]
covering seven parcels of land in favor of her niece
Ursulina Ganuelas (Ursulina), one of herein petitioners.
The pertinent provision of the deed of donation reads, quoted verbatim:
x x x
That, for and in consideration of the love and affection which the DONOR has for the
DONEE, and of the faithful services the latter has rendered in the past to the former, the
said DONOR does by these presents transfer and convey, by way of DONATION, unto
the DONEE the property above, described, to become effective upon the death of the
DONOR; but in the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and of no further force and effect.
x x x.
[3]

On June 10, 1967, Celestina executed a document denominated as Revocation of
Donation
[4]
purporting to set aside the deed of donation. More than a month later or on
August 18, 1967, Celestina died without issue and any surviving ascendants and
siblings.
After Celestinas death, Ursulina had been sharing the produce of the donated
properties with private respondents Leocadia G. Flores, et al., nieces of Celestina.
In 1982, or twenty-four years after the execution of the Deed of Donation, Ursulina
secured the corresponding tax declarations, in her name, over the donated properties,
to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111, 18112, 18113 and 18114,
and since then, she refused to give private respondents any share in the produce of the
properties despite repeated demands.
Private respondents were thus prompted to file on May 26, 1986 with the RTC of
San Fernando, La Union a complaint
[5]
against Ursulina, along with Metodio Ganuelas
and Antonio Ganuelas who were alleged to be unwilling plaintiffs. The complaint
alleged that the Deed of Donation executed by Celestina in favor of Ursulina was void
for lack of acknowledgment by the attesting witnesses thereto before notary public Atty.
Henry Valmonte, and the donation was a disposition mortis causa which failed to
comply with the provisions of the Civil Code regarding formalities of wills and
testaments, hence, it was void. The plaintiffs-herein private respondents thus prayed
that judgment be rendered ordering Ursulina to return to them as intestate heirs the
possession and ownership of the properties. They likewise prayed for the cancellation
of the tax declarations secured in the name of Ursulina, the partition of the properties
among the intestate heirs of Celestina, and the rendering by Ursulina of an accounting
of all the fruits of the properties since 1982 and for her to return or pay the value of their
shares.
The defendants-herein petitioners alleged in their Answer
[6]
that the donation in
favor of Ursulina was inter vivos as contemplated under Article 729 of the Civil
Code,
[7]
hence, the deed did not have to comply with the requirements for the execution
of a valid will; the Revocation of Donation is null and void as the ground mentioned
therein is not among those provided by law to be the basis thereof; and at any rate, the
revocation could only be legally enforced upon filing of the appropriate complaint in
court within the prescriptive period provided by law, which period had, at the time the
complaint was filed, already lapsed.
By Decision of February 22, 1996, the trial court, holding that the provision in the
Deed of Donation that in the event that the DONEE should predecease the DONOR, the
donation shall be deemed rescinded and of no further force and effect is an explicit
indication that the deed is a donation mortis causa,
[8]
found for the plaintiffs-herein
private respondents, thus:
WHEREFORE the Court renders judgment declaring null and void the Deed of Donation
of Real Property executed by Celestina Ganuelas, and orders the partition of the estate
of Celestina among the intestate heirs.
SO ORDERED.
[9]

The trial court also held that the absence of a reservation clause in the deed implied
that Celestina retained complete dominion over her properties, thus supporting the
conclusion that the donation is mortis causa,
[10]
and that while the deed contained an
attestation clause and an acknowledgment showing the intent of the donor to effect a
postmortem disposition, the acknowledgment was defective as only the donor and
donee appear to have acknowledged the deed before the notary public, thereby
rendering the entire document void.
[11]

Lastly, the trial court held that the subsequent execution by Celestina of the
Revocation of Donation showed that the donor intended the revocability of the
donation ad nutum, thus sustaining its finding that the conveyance was mortis causa.
[12]

On herein petitioners argument that the Revocation of Donation was void as the
ground mentioned therein is not one of those allowed by law to be a basis for
revocation, the trial court held that the legal grounds for such revocation as provided
under the Civil Code arise only in cases of donations inter vivos, but not in
donations mortis causa which are revocable at will during the lifetime of the donor. The
trial court held, in any event, that given the nullity of the disposition mortis causa in view
of a failure to comply with the formalities required therefor, the Deed of Revocation was
a superfluity.
[13]

Hence, the instant petition for review, petitioners contending that the trial court
erred:
I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION
EXECUTED BY CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;
III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER
URSULINA GANUELAS.
[14]

Petitioners argue that the donation contained in the deed is inter vivos as the main
consideration for its execution was the donors affection for the donee rather than the
donors death;
[15]
that the provision on the effectivity of the donationafter the donors
deathsimply meant that absolute ownership would pertain to the donee on the donors
death;
[16]
and that since the donation isinter vivos, it may be revoked only for the
reasons provided in Articles 760,
[17]
764
[18]
and 765
[19]
of the Civil Code.
In a letter of March 16, 1998,
[20]
private respondent Corazon Sipalay, reacting to this
Courts January 28, 1998 Resolution requiring private respondents to SHOW CAUSE
why they should not be disciplinarily dealt with or held in contempt for failure to submit
the name and address of their new counsel, explains that they are no longer interested
in pursuing the case and are willing and ready to waive whatever rights they have over
the properties subject of the donation. Petitioners, who were required to comment on
the letter, by Comment of October 28, 1998,
[21]
welcome private respondents gesture
but pray that for the sake of enriching jurisprudence, their [p]etition be given due course
and resolved.
The issue is thus whether the donation is inter vivos or mortis causa.
Crucial in the resolution of the issue is the determination of whether the donor
intended to transfer the ownership over the properties upon the execution of the
deed.
[22]

Donation inter vivos differs from donation mortis causa in that in the former, the act
is immediately operative even if the actual execution may be deferred until the death of
the donor, while in the latter, nothing is conveyed to or acquired by the donee until the
death of the donor-testator.
[23]
The following ruling of this Court in Alejandro v.
Geraldez is illuminating:
[24]

If the donation is made in contemplation of the donors death, meaning that the full or
naked ownership of the donated properties will pass to the donee only because of the
donors death, then it is at that time that the donation takes effect, and it is a
donation mortis causa which should be embodied in a last will and testament.
But if the donation takes effect during the donors lifetime or independently of the
donors death, meaning that the full or naked ownership (nuda proprietas) of the
donated properties passes to the donee during the donors lifetime, not by reason of his
death but because of the deed of donation, then the donation is inter vivos.
The distinction between a transfer inter vivos and mortis causa is important as the
validity or revocation of the donation depends upon its nature. If the donation is inter
vivos, it must be executed and accepted with the formalities prescribed by Articles
748
[25]
and 749
[26]
of the Civil Code, except when it is onerous in which case the rules
on contracts will apply. If it is mortis causa, the donation must be in the form of a will,
with all the formalities for the validity of wills, otherwise it is void and cannot transfer
ownership.
[27]

The distinguishing characteristics of a donation mortis causa are the following:
1. It conveys no title or ownership to the transferee before the death of the transferor;
or, what amounts to the same thing, that the transferor should retain the ownership (full
or naked) and control of the property while alive;
2. That before his death, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed;
3. That the transfer should be void if the transferor should survive the transferee.
[28]

In the donation subject of the present case, there is nothing therein which indicates
that any right, title or interest in the donated properties was to be transferred to Ursulina
prior to the death of Celestina.
The phrase to become effective upon the death of the DONOR admits of no other
interpretation but that Celestina intended to transfer the ownership of the properties to
Ursulina on her death, not during her lifetime.
[29]

More importantly, the provision in the deed stating that if the donee should die
before the donor, the donation shall be deemed rescinded and of no further force and
effect shows that the donation is a postmortem disposition.
As stated in a long line of cases, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered void if the donor should
survive the donee.
[30]

More. The deed contains an attestation clause expressly confirming the donation
as mortis causa:
SIGNED by the above-named donor, Celestina Ganuelas, at the foot of this deed of
donation mortis causa, consisting of two (2) pages and on the left margin of each and
every page thereof in the joint presence of all of us who at her request and in her
presence and that of each other have in like manner subscribed our names as
witnesses.
[31]
(Emphasis supplied)
To classify the donation as inter vivos simply because it is founded on
considerations of love and affection is erroneous. That the donation was prompted by
the affection of the donor for the donee and the services rendered by the latter is of no
particular significance in determining whether the deed constitutes a transfer inter
vivos or not, because a legacy may have an identical motivation.
[32]
In other words, love
and affection may also underline transfers mortis causa.
[33]

In Maglasang v. Heirs of Cabatingan,
[34]
the deeds of donation contained
provisions almost identical to those found in the deed subject of the present case:
That for and in consideration of the love and affection of the DONOR for the DONEE, x
x x the DONOR does hereby, by these presents, transfer, convey, by way of donation,
unto the DONEE the above-described property, together with the buildings and all
improvements existing thereon, to become effective upon the death of the DONOR;
PROVIDED, HOWEVER, that in the event that the DONEE should die before the
DONOR, the present donation shall be deemed automatically rescinded and of no
further force and effect. (Underscoring supplied)
In that case, this Court held that the donations were mortis causa, for the above-quoted
provision conclusively establishes the donors intention to transfer the ownership and
possession of the donated property to the donee only after the formers death. Like in
the present case, the deeds therein did not contain any clear provision that purports to
pass proprietary rights to the donee prior to the donors death.
As the subject deed then is in the nature of a mortis causa disposition, the
formalities of a will under Article 728 of the Civil Code should have been complied with,
failing which the donation is void and produces no effect.
[35]

As noted by the trial court, the attesting witnesses failed to acknowledge the deed
before the notary public, thus violating Article 806 of the Civil Code which provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (Emphasis supplied)
The trial court did not thus commit any reversible error in declaring the Deed of
Donation to be mortis causa.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.
Puno, J., (Chairman), No part. Knows one of the parties.


















Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192916 October 11, 2010
MANUEL A. ECHAVEZ, Petitioner,
vs.
DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE
REGISTER OF DEEDS OF CEBU CITY, Respondents.
R E S O L U T I O N
BRION, J .:
Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which
includes Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985,
Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a Deed
of Donation Mortis Causa.
1
Manuel accepted the donation.
In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen
Construction and Development Corporation (Dozen Corporation). In October 1986, they
executed two Deeds of Absolute Sale over the same properties covered by the previous
Contract to Sell.
On November 6, 1986, Vicente died. Emiliano Cabanig, Vicentes nephew, filed a
petition for the settlement of Vicentes intestate estate. On the other hand, Manuel filed
a petition to approve Vicentes donation mortis causa in his favor and an action to annul
the contracts of sale Vicente executed in favor of Dozen Corporation. These cases were
jointly heard.
The Regional Trial Court (RTC) dismissed Manuels petition to approve the donation
and his action for annulment of the contracts of sale.
2
The RTC found that the execution
of a Contract to Sell in favor of Dozen Corporation, after Vicente had donated the lots to
Manuel, was an equivocal act that revoked the donation. The Court of Appeals (CA)
affirmed the RTCs decision.
3
The CA held that since the donation in favor of Manuel
was a donation mortis causa, compliance with the formalities for the validity of wills
should have been observed. The CA found that the deed of donation did not contain an
attestation clause and was therefore void.
The Petition for Review on Certiorari
Manuel claims that the CA should have applied the rule on substantial compliance in the
construction of a will to Vicentes donation mortis causa. He insists that the strict
construction of a will was not warranted in the absence of any indication of bad faith,
fraud, or substitution in the execution of the Deed of Donation Mortis Causa. He argues
that the CA ignored the Acknowledgment portion of the deed of donation, which
contains the "import and purpose" of the attestation clause required in the execution of
wills. The Acknowledgment reads:
BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu,
personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on
April 10, 1985 at [sic] Talisay, Cebu known to me to be the same person who executed
the foregoing instrument of Deed of Donartion Mortis Causa before the Notary Public
and in the presence of the foregoing three (3) witnesses who signed this instrument
before and in the presence of each other and of the Notary Public and all of them
acknowledge to me that the same is their voluntary act and deed. [Emphasis in the
original.]
THE COURTS RULING
The CA correctly declared that a donation mortis causa must comply with the formalities
prescribed by law for the validity of wills,
4
"otherwise, the donation is void and would
produce no effect."
5
Articles 805 and 806 of the Civil Code should have been applied.
As the CA correctly found, the purported attestation clause embodied in the
Acknowledgment portion does not contain the number of pages on which the deed was
written.lavvphilThe exception to this rule in Singson v. Florentino
6
and Taboada v. Hon.
Rosal,
7
cannot be applied to the present case, as the facts of this case are not similar
with those of Singson and Taboada. In those cases, the Court found that although the
attestation clause failed to state the number of pages upon which the will was written,
the number of pages was stated in one portion of the will. This is not the factual
situation in the present case.
Even granting that the Acknowledgment embodies what the attestation clause requires,
we are not prepared to hold that an attestation clause and an acknowledgment can be
merged in one statement.
That the requirements of attestation and acknowledgment are embodied in two separate
provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different purposes. An acknowledgment is
made by one executing a deed, declaring before a competent officer or court that the
deed or act is his own. On the other hand, the attestation of a will refers to the act of the
instrumental witnesses themselves who certify to the execution of the instrument before
them and to the manner of its execution.
8
1avvphi1
Although the witnesses in the present case acknowledged the execution of the Deed of
Donation Mortis Causa before the notary public, this is not the avowal the law requires
from the instrumental witnesses to the execution of a decedents will. An attestation
must state all the details the third paragraph of Article 805 requires. In the absence of
the required avowal by the witnesses themselves, no attestation clause can be deemed
embodied in the Acknowledgement of the Deed of Donation Mortis Causa.
Finding no reversible error committed by the CA, the Court hereby DENIES Manuels
petition for review on certiorari.
SO ORDERED.
ARTURO D. BRION
Associate Justice



















FIRST DIVISION

MANUEL L. LEE, A.C. No. 5281
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.

ATTY. REGINO B. TAMBAGO,
Respondent. Promulgated:
February 12, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

R E S O L U T I O N
CORONA, J .:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged
respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of
the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee,
Sr., never executed the contested will. Furthermore, the spurious will contained the
forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its
execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife
Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena
Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on June
30, 1965.
[1]
Complainant, however, pointed out that the residence certificate
[2]
of the
testator noted in the acknowledgment of the will was dated January 5,
1962.
[3]
Furthermore, the signature of the testator was not the same as his signature as
donor in a deed of donation
[4]
(containing his purported genuine signature). Complainant
averred that the signatures of his deceased father in the will and in the deed of donation
were in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s].
[5]


Complainant also questioned the absence of notation of the residence
certificates of the purported witnesses Noynay and Grajo. He alleged that their
signatures had likewise been forged and merely copied from their respective voters
affidavits.

Complainant further asserted that no copy of such purported will was on file in
the archives division of the Records Management and Archives Office of the National
Commission for Culture and the Arts (NCCA). In this connection, the certification of the
chief of the archives division dated September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in
this Office[s] files.
[6]



Respondent in his comment dated July 6, 2001 claimed that the complaint
against him contained false allegations: (1) that complainant was a son of the decedent
Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that
complainant was not a legitimate son of Vicente Lee, Sr. and the last will and testament
was validly executed and actually notarized by respondent per affidavit
[7]
of Gloria
Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit
[8]
of
the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx.
[9]


Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman did not prosper.

Respondent did not dispute complainants contention that no copy of the will was
on file in the archives division of the NCCA. He claimed that no copy of the contested
will could be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of nullity of
the will and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.
[10]


In his report, the investigating commissioner found respondent guilty of violation
of pertinent provisions of the old Notarial Law as found in the Revised Administrative
Code. The violation constituted an infringement of legal ethics, particularly Canon
1
[11]
and Rule 1.01
[12]
of the Code of Professional Responsibility (CPR).
[13]
Thus, the
investigating commissioner of the IBP Commission on Bar Discipline recommended the
suspension of respondent for a period of three months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part
of this Resolution as Annex A; and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules,
and considering Respondents failure to comply with the laws in the
discharge of his function as a notary public, Atty. Regino B. Tambago is
hereby suspended from the practice of law for one year and Respondents
notarial commission is Revoked and Disqualified from reappointment as
Notary Public for two (2) years.
[14]



We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to take effect after his
death.
[15]
A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to close the door on
bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their
truth and authenticity.
[16]


A notarial will, as the contested will in this case, is required by law to be
subscribed at the end thereof by the testator himself. In addition, it should be attested
and subscribed by three or more credible witnesses in the presence of the testator and
of one another.
[17]


The will in question was attested by only two witnesses, Noynay and Grajo. On
this circumstance alone, the will must be considered void.
[18]
This is in consonance with
the rule that acts executed against the provisions of mandatory or prohibitory laws shall
be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses.
[19]
The importance of this requirement is
highlighted by the fact that it was segregated from the other requirements under Article
805 and embodied in a distinct and separate provision.
[20]


An acknowledgment is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his act or deed. It involves an
extra step undertaken whereby the signatory actually declares to the notary public that
the same is his or her own free act and deed.
[21]
The acknowledgment in a notarial will
has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and
(2) to assure that his estate is administered in the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows that
this particular requirement was neither strictly nor substantially complied with. For one,
there was the conspicuous absence of a notation of the residence certificates of the
notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of
the testators old residence certificate in the same acknowledgment was a clear breach
of the law. These omissions by respondent invalidated the will.

As the acknowledging officer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:
[22]


The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before him had presented the proper residence certificate
(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.


These formalities are mandatory and cannot be disregarded, considering the
degree of importance and evidentiary weight attached to notarized documents.
[23]
A
notary public, especially a lawyer,
[24]
is bound to strictly observe these elementary
requirements.

The Notarial Law then in force required the exhibition of the residence certificate
upon notarization of a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residence
tax. Every contract, deed, or other document acknowledged before a
notary public shall have certified thereon that the parties thereto have
presented their proper [cedula] residence certificate or are exempt from
the [cedula] residence tax, and there shall be entered by the notary public
as a part of such certificate the number, place of issue, and date of each
[cedula] residence certificate as aforesaid.
[25]



The importance of such act was further reiterated by Section 6 of the Residence
Tax Act
[26]
which stated:

When a person liable to the taxes prescribed in this Act acknowledges any
document before a notary public xxx it shall be the duty of such person
xxx with whom such transaction is had or business done, to require the
exhibition of the residence certificate showing payment of the residence
taxes by such person xxx.


In the issuance of a residence certificate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of residence
taxes for the current year. By having allowed decedent to exhibit an expired residence
certificate, respondent failed to comply with the requirements of both the old Notarial
Law and the Residence Tax Act. As much could be said of his failure to demand the
exhibition of the residence certificates of Noynay and Grajo.


On the issue of whether respondent was under the legal obligation to furnish a
copy of the notarized will to the archives division, Article 806 provides:

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

Respondents failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the
necessary entries pertaining to the will in his notarial register. The old Notarial Law
required the entry of the following matters in the notarial register, in chronological order:

1. nature of each instrument executed, sworn to, or acknowledged
before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of
the instrument.
[27]



In an effort to prove that he had complied with the abovementioned rule,
respondent contended that he had crossed out a prior entry and entered instead the will
of the decedent. As proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a certification
[28]
stating that the
archives division had no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is
shown that the original is unavailable. The proponent must first prove the existence and
cause of the unavailability of the original,
[29]
otherwise, the evidence presented will not
be admitted. Thus, the photocopy of respondents notarial register was not admissible
as evidence of the entry of the execution of the will because it failed to comply with the
requirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated
September 21, 1999
[30]
must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000;
[31]
its contents did not squarely prove the fact of
entry of the contested will in his notarial register.

Notaries public must observe with utmost care
[32]
and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the public
in the integrity of notarized deeds will be undermined.
[33]


Defects in the observance of the solemnities prescribed by law render the entire
will invalid. This carelessness cannot be taken lightly in view of the importance and
delicate nature of a will, considering that the testator and the witnesses, as in this case,
are no longer alive to identify the instrument and to confirm its contents.
[34]
Accordingly,
respondent must be held accountable for his acts. The validity of the will was seriously
compromised as a consequence of his breach of duty.
[35]


In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of
duty on the part of a notary public shall, in the discretion of the proper
judge of first instance, be sufficient ground for the revocation of his
commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his
notarial register touching his notarial acts in the manner required by
law.

xxx xxx xxx


(f) The failure of the notary to make the proper notation regarding
cedula certificates.
[36]



These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules
of Court
[37]
and Canon 1
[38]
and Rule 1.01
[39]
of the CPR.


The first and foremost duty of a lawyer is to maintain allegiance to the Republic
of the Philippines, uphold the Constitution and obey the laws of the land.
[40]
For a lawyer
is the servant of the law and belongs to a profession to which society has entrusted the
administration of law and the dispensation of justice.
[41]


While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate.
[42]
Being a lawyer, he is supposed to be
a model in the community in so far as respect for the law is concerned.
[43]


The practice of law is a privilege burdened with conditions.
[44]
A breach of these
conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is
imposed on a lawyer upon a finding or acknowledgment that he has engaged in
professional misconduct.
[45]
These sanctions meted out to errant lawyers include
disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.
[46]
We have held in
a number of cases that the power to disbar must be exercised with great caution
[47]
and
should not be decreed if any punishment less severe such as reprimand, suspension,
or fine will accomplish the end desired.
[48]
The rule then is that disbarment is meted
out only in clear cases of misconduct that seriously affect the standing and character of
the lawyer as an officer of the court.
[49]


Respondent, as notary public, evidently failed in the performance of the
elementary duties of his office. Contrary to his claims that he exercised his duties as
Notary Public with due care and with due regard to the provision of existing law and had
complied with the elementary formalities in the performance of his duties xxx, we find
that he acted very irresponsibly in notarizing the will in question. Such recklessness
warrants the less severe punishment of suspension from the practice of law. It is, as
well, a sufficient basis for the revocation of his commission
[50]
and his perpetual
disqualification to be commissioned as a notary public.
[51]



WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of
Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art.
806 of the Civil Code and (5) the provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for
one year and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary public.

Let copies of this Resolution be furnished to all the courts of the land, the
Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made
part of the personal records of respondent.

SO ORDERED.


RENATO C. CORONA
Associate Justice


ART 808. IF TESTATOR IS BLIND


[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO
M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch and
CONSUELO GONZALES VDA. DE PRECILLA,Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO
M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch V,
REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE
PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.
GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA
NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO,
EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA,
MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD
DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-
Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla &
Ramon C. Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso,
Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio
Jesus de Praga.

Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina
Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-
appellants Natividad del Rosario Sarmiento, Et. Al.


SYLLABUS


1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR
DISALLOWANCE; TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO
READ THE PROVISIONS OF LATER WILL. The declarations in court of the
opthalmologist as to the condition of the testatrixs eyesight fully establish the fact that
her vision remained mainly for viewing distant objects and not for reading print; that she
was, at the time of the execution of the second will on December 29, 1960, incapable of
reading and could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE
AT BAR. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, apparently to
save on space. Plainly, the testament was not prepared with any regard for the
defective vision of Da. Gliceria, the typographical errors remained uncorrected thereby
indicating that the execution thereof must have been characterized by haste. It is
difficult to understand that so important a document containing the final disposition of
ones worldly possessions should be embodied in an informal and untidy written
instrument; or that the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW
CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR;
PURPOSE. The rationale behind the requirement of reading the will to the testator if
he is blind or incapable of reading the will himself 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.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where as in
the 1960 will there is nothing in the record to show that the requisites of Art. 808 of the
Civil Code of the Philippines that "if the testator is blind, the will shall be read to him
twice," have not been complied with, the said 1960 will suffer from infirmity that affects
its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;
ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST
ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE
TO DISCHARGE THE TRUST; CASE AT BAR. Considering that the alleged deed of
sale was executed when Gliceria del Rosario was already practically blind and that the
consideration given seems unconscionably small for the properties, there was likelihood
that a case for annulment might be filed against the estate or heirs of Alfonso Precilla.
And the administratrix being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to belong to
the estate. This, plus her conduct in securing new copies of the owners duplicate of
titles without the courts knowledge and authority and having the contract bind the land
through issuance of new titles in her husbands name, cannot but expose her to the
charge of unfitness or unsuitability to discharge the trust, justifying her removal from the
administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE
OR THE RIGHT OF POSSESSION OF REAL PROPERTY." On the matter of lis
pendens, the provisions of the Rules of Court are clear: notice of the pendency of an
action may be recorded in the office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right of possession of (such) real
property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy
here is simply the fitness or unfitness of said special administratrix to continue holding
the trust, it does not involve or affect at all the title to, or possession of, the properties
covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-
26615) is not an action that can properly be annotated in the record of the titles to the
properties.


D E C I S I O N


REYES, J.B.L., J .:


G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in
Sp. Proc. No. 62618) admitting to probate the alleged last will an, testament of the late
Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684
are separate petitions for mandamus filed by certain alleged heirs of said decedent
seeking (1) to compel the probate court to remove Consuelo S. Gonzales-Precilla as
special administratrix of the estate, for conflict of interest, to appoint a new one in her
stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis pendens
in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla,
married to Consuelo Gonzales y Narciso, and said to be properly belonging to the
estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be
stated as follows:chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965,
leaving no descendents, ascendants, brother or sister. At the time of her death, she was
said to be 90 years old more or less, and possessed of an estate consisting mostly of
real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the
deceased, petitioned the Court of First Instance of Manila for probate of the alleged last
will and testament of Gliceria A. del Rosario, executed on 29 December 1960, and for
her appointment as special administratrix of the latters estate, said to be valued at
about P100,000.00, pending the appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr.
Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario
on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956
and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the
deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and
Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso,
and Vicente and Delfin, surnamed Mauricio, the latter five groups of persons all
claiming to be relatives of Doa Gliceria within the fifth civil degree. The oppositions
invariably charged that the instrument executed in 1960 was not intended by the
deceased to be her true will; that the signatures of the deceased appearing in the will
was procured through undue and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not know the object of her
bounty; that the instrument itself reveals irregularities in its execution, and that the
formalities required by law for such execution have not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the
deceased, joined the group of Dr. Jaime Rosario in registering opposition to the
appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the estate.
After the parties were duly heard, the probate court, in its order of 2 October 1965,
granted petitioners prayer and appointed her special administratrix of the estate upon a
bond for P30,000.00. The order was premised on the fact the petitioner was managing
the properties belonging to the estate even during the lifetime of the deceased, and to
appoint another person as administrator or co administrator at that stage of the
proceeding would only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an
urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals made
against the funds of the deceased after 2 September 1965. The court denied this motion
on 22 October 1965 for being premature, it being unaware that such deposit in the
name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children,
Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the
court for the immediate removal of the special administratrix. It was their claim that the
special administratrix and her deceased husband, Alfonso Precilla, 2 had caused
Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale
dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon located on
Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00.
Oppositors contended that since it is the duty of the administrator to protect and
conserve the properties of the estate, and it may become necessary that, an action for
the annulment of the deed of sale land for recovery of the aforementioned parcels of
land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the
Special Administratrix to deposit with the Clerk of Court all certificates of title belonging
to the estate. It was alleged that on 22 October 1965, or after her appointment,
petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix
of the estate of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of
First Instance of Manila a motion for the issuance of new copies of the owners
duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly
needed by her "in the preparation of the inventory" of the properties constituting the
estate. The motion having been granted, new copies of the owners duplicates of
certificates appearing the name of Gliceria del Rosario (among which were TCT Nos.
66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965,
according to the oppositors, the same special administratrix presented to the Register of
Deeds the deed of sale involving properties covered by TCT Nos. 66201, 66202 and
66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of
Alfonso Precilla, and, in consequence, said certificates of title were cancelled and new
certificates (Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla,
married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of
Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the
probate court took note that no evidence had been presented to establish that the
testatrix was not of sound mind when the will was executed; that the fact that she had
prepared an earlier will did not, prevent her from executing another one thereafter; that
the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was
contained in one page does not render the latter invalid; that, the erasures and
alterations in the instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which were noted by
the oppositors are even indicative of their truthfulness. The probate court, also
considering that petitioner had already shown capacity to administer the properties of
the estate and that from the provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner regular administratrix with a
bond for P50,000.00. From this order all the oppositors appealed, the case being
docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors motion of 14
December 1965 for the removal of the then special administratrix, as
follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special administratrix
and to appoint another one in her stead, is in order that an action may be filed against
the special administratrix for the annulment of the deed of sale executed by the
decedent on January 10, 1961. Under existing documents, the properties sold pursuant
to the said deed of absolute sale no longer forms part of the estate. The alleged conflict
of interest is accordingly not between different claimants of the same estate. If it is
desired by the movants that an action be filed by them to annul the aforesaid deed
absolute sale, it is not necessary that the special administratrix be removed and that
another one be appointed to file such action. Such a course of action would only
produce confusion and difficulties in the settlement of the estate. The movants may file
the aforesaid proceedings, preferably in an independent action, to secure the nullity of
the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in
the name of the decedent, the same was also denied, for the reason that if the movants
were referring to the old titles, they could no longer be produced, and if they meant the
new duplicate copies thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because they were already
cancelled and other certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors filing in this Court of a petition for mandamus (G.R. No. L-
26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.),
which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court, the oppositors
requested the Register of Deeds of Manila to annotate a notice of lis pendens in the
records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And
when said official refused to do so, they applied to the probate court (in Sp. Proc. No.
62618) for an order to compel the Register of Deeds to annotate a lis pendens notice in
the aforementioned titles contending that the matter of removal and appointment of the
administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the
Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed
another mandamus action, this time against the probate court and the Register of
Deeds. The case was docketed and given due course in this Court as G.R. No. L-
26864.

Foremost of the questions to be determined here concerns the correctness of the order
allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria
A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of
12 pages and written in Spanish, a language that she knew and spoke, witnessed by
Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged
before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1
page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena,
and Francisco Lopez and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena,
Lopez and Rosales uniformly declared that they were individually requested by Alfonso
Precilla (the late husband of petitioner special administratrix) to witness the execution of
the last will of Doa Gliceria A. del Rosario; that they arrived at the house of the old lady
at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December
1960; that the testatrix at the time was apparently of clear and sound mind, although
she was being aided by Precilla when she walked; 3 that the will, which was already
prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he
three witnesses thereafter signed the will in the presence of the testatrix and the notary
public and of one another. There is also testimony that after the testatrix and the
witnesses to the will acknowledged the instrument to be their voluntary act and deed,
the notary public asked for their respective residence certificates which were handed to
him by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers
already written on the will, the notary public filled in the blanks in the instrument with the
date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also
testified that on that occasion no pressure or influence has been exerted by any person
upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this
1960 will are evident from the records. The will appeared to have been prepared by one
who is not conversant with the spelling of Tagalog words, and it has been shown that
Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The
witnesses to the will, two of whom are fellow Visayans, 8 admitted their relationship or
closeness to Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria
del Rosario on 29 December 1960 to witness an important document, 10 and who took
their residence certificates from them a few days before the will was signed. 11 Precilla
had met the notary public and witnesses Rosales and Lopez at the door of the
residence of the old woman; he ushered them to the room at the second floor where the
signing of the document took place; 12 then he fetched witness Decena from the latters
haberdashery shop a few doors away and brought him to, the house the testatrix. 13
And when the will was actually executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of
the probate courts ruling, maintain that on 29 December 1960 the eyesight of Gliceria
del Rosario was so poor and defective that she could not have read the provisions of
the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material
and illuminating. Said ophthalmologist, whose expertise was admitted by both parties,
testified, among other things, that when Doa Gliceria del Rosario saw him for
consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15
and that it was "above normal in pressure", denoting a possible glaucoma, a disease
that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-
B, 3-C and 3-D from which you could inform the court as to the condition of the vision of
the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by
myself which showed that the right eye with my prescription of glasses had a vision of 2
over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).

"Q In laymans language, Doctor, what is the significance of that notation that the right
had a degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a
minimum distance of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for
near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the
decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of
the glasses her vision was only "counting fingers," 17 at five feet. The cross-
examination of the doctor further elicited the following responses:jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or
glasses?

"A After her discharge from the hospital, she was coming to my clinic for further
examination and then sometime later glasses were prescribed.
x x x


"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed
the eye which I operated she could see only forms but not read. That is on the left
eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye."
(pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November
1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had
been under medical supervision up to 1963 with apparently good vision", the doctor had
this to say:jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that she was able to
read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can
tell you, this report was made on pure recollections and I recall she was using her
glasses although I recall also that we have to give her medicines to improve her vision,
some medicines to improve her identification some more.
x x x


"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical
record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and,
therefore, has first hand knowledge of the actual condition of her eyesight from August,
1960 up to 1963, fully establish the fact that notwithstanding the operation and removal
of the cataract in her left eye and her being fitted with aphakic lens (used by cataract
patients), her vision remained mainly for viewing distant objects and not for reading
print. Thus, the conclusion is inescapable that with the condition of her eyesight in
August, 1960, and there is no evidence that it had improved by 29 December 1960,
Gliceria del Rosario was incapable f reading, and could not have read the provisions of
the will supposedly signed by her on 29 December 1960. It is worth noting that the
instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164-
165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of
the will, Exhibit "D", acquires striking significance. Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed together into a
single sheet of paper, to much so that the words had to be written very close on the top,
bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had
to be written by the symbol" &", apparently to save on space. Plainly, the testament was
not prepared with any regard for the defective vision of Doa Gliceria. Further,
typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso",
"MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged"
for "acknowledge, remained uncorrected, thereby indicating that execution thereof
must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of ones worldly possessions should be
embodied in an informal and untidily written instrument; or that the glaring spelling
errors should have escaped her notice if she had actually retained the ability to read the
purported will and had done so. The record is thus convincing that the supposed
testatrix could not have physically read or understood the alleged testament, Exhibit
"D", and that its admission to probate was erroneous and should be reversed.

That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers
and attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit
"D", as appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she
was able to read a closely typed page, since the acts shown do not require vision at
close range. It must be remembered that with the natural lenses removed, her eyes had
lost the power of adjustment to near vision, the substituted glass lenses being rigid and
uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or signing of ones name,
when sufficiently practiced, becomes automatic, so that one need only to have a rough
indication of the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", et
seq., reinforces the contention of oppositors that the alleged testatrix could not see at
normal reading distance: the signatures in the checks are written far above the printed
base, lines, and the names of the payees as well as the amounts written do not appear
to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid
hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del
Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due
execution of her will would have required observance of the provisions of Article 808 of
the Civil Code.

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

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), 18 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. That the aim of the law is to insure that the dispositions of
the will are properly communicated to and understood by the handicapped testator, thus
making them truly reflective of his desire, is evidenced by the requirement that the will
should be read to the latter, not only once but twice, by two different persons, and that
the witnesses have to act within the range of his (the testators) other senses. 19

In connection with the will here in question, there is nothing in the records to show that
the above requisites have been complied with. Clearly, as already stated, the 1960 will
sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the
denial by the probate court of their petition for the removal of Consuelo Gonzales Vda.
de Precilla as special administratrix of the estate of the deceased Doa Gliceria
(Petition, G.R. No. L-26615, Annex "B").

The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their contention that
through fraud her husband had caused the deceased Gliceria del Rosario to execute a
deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed
unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership of
3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum
of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P",
Petition) reasoned out that since the properties were already sold no longer form part of
the estate. The conflict of interest would not be between the estate and third parties, but
among the different claimants of said properties, in which case, according to the court,
the participation of the special administratrix in the action for annulment that may be
brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was
precisely the validity of the conveyance or sale of the properties. In short, if proper, the
action for annulment would have to be undertaken on behalf of the estate by the special
administratrix, affecting as it does the property or rights of the deceased. 20 For the rule
is that only where there is no special proceeding for the settlement of the estate of the
deceased may the legal heirs commence an action arising out of a right belonging to
their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the
deed of sale, an ordinary and separate action would have to be instituted, the matter not
falling within the competence of the probate court. 22 Considering the facts then before
it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10
January 1961, when she was already practically blind; and that the consideration of
P30,000.00 seems to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for annulment might indeed be
filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be expected to sue herself in an action
to recover property that may turn out to belong to the estate. 22 Not only this, but the
conduct of the special administratrix in securing new copies of the owners duplicates of
TCT Nos. 66201, 66202, and 66204, without the courts knowledge or authority, and on
the pretext that she needed them in the preparation of the inventory of the estate, when
she must have already known by then that the properties covered therein were already
"conveyed" to her husband by the deceased, being the latters successor, and having
the contract bind the land through issuance of new titles in her husbands name cannot
but expose her to the charge of unfitness or unsuitableness to discharge the trust,
justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors motion to
require the Hongkong and Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965 and (2) the motion for annotation of a lis
pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could
not have taken action on the complaint against the alleged withdrawals from the bank
deposits of the deceased, because as of that time the court had not yet been apprised
that such deposits exist. Furthermore, as explained by the special administratrix in her
pleading of 30 October 1965, the withdrawals referred to by the oppositors could be
those covered by checks issued in the name of Gliceria del Rosario during her lifetime
but cleared only after her death. That explanation, which not only appears plausible but
has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse
in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court
are clear: notice of the pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is situated, if the action affects
"the title or the right of possession of (such) real property." 23 In the case at bar, the
pending action which oppositors seek to annotate in the records of TCT Nos. 81735,
81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615).
As previously discussed in this opinion, however, that case is concerned merely with the
correctness of the denial by the probate court of the motion for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del
Rosario. In short, the issue in controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not involve or affect at all the
title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and
81737. Clearly, the pendency of such case (L-26615) is not an action that can properly
be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate
the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The
petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and the
court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de
Precilla, and appoint one of the heirs intestate of the deceased Doa Gliceria Avelino
del Rosario as special administrator for the purpose of instituting action on behalf of her
estate to recover the properties allegedly sold by her to the late Alfonso D. Precilla. And
in Case G.R. No. L-26864, petition is dismissed. No costs.

Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur.

Zaldivar and Castro, JJ., took no part.

Barredo, J., is on leave.






















Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased
Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J .:
Before us is an appeal from the Decision dated 11 April 1986
1
of the First Civil Cases
Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed
the Order dated 27 June 1983
2
of the Regional Trial Court of Sta. Cruz, Laguna,
admitting to probate the last will and testament
3
with codicil
4
of the late Brigido
Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled
"Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged
document, read the same aloud in the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the reading with their own
respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in
the notarial will to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read the
final draft of the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna.
5
Petitioner, in turn, filed an
Opposition on the following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its execution due to senility and old
age; that the will was executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the signature
of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased was
blind within the meaning of the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading required by Art. 808 of the Civil
Code was admittedly not complied with, probate of the deceased's last will and codicil
should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading requirement of Art. 808 was
substantially complied with when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary public following the reading with
their respective copies of the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was substantial compliance since
its purpose of making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of
Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the
double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
was not totally blind at the time the will and codicil were executed. However, his vision
on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma
which he had been suffering from for several years and even prior to his first
consultation with an eye specialist on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a
"blind" testator under Art. 808 which reads:
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.
Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute),
6
the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent.
7
Dr. Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either printed or handwritten matters as
of 14 December 1977, the day of his first consultation.
8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that
the testator could still read on the day the will and the codicil were executed but chose
not to do so because of "poor eyesight."
9
Since the testator was still capable of reading
at that time, the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor,"
10
"defective,"
11
or "blurred"
12
vision making it necessary for private respondent
to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez
13
provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as when he is
illiterate), is to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give him an
opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and
an instrumental witness, it was the lawyer (private respondent) who drafted the eight-
paged will and the five-paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains
that the only valid compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the contents of the will and
codicil to Brigido, probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
testamentary privilege.
14

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

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testator's physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the affirmative.
16
With four
persons following the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we consider the
fact that the three instrumental witnesses were persons known to the testator, one being
his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him
since childhood.
The spirit behind the law was served though the letter was not. Although there should
be strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only defeat the testator's
will.
17

As a final word to convince petitioner of the propriety of the trial court's Probate Order
and its affirmance by the Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan,
18
to wit:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid the substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on the subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his
"Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside
fro the mere reason that a legal requirement intended for his protection was not followed
strictly when such compliance had been rendered unnecessary by the fact that the
purpose of the law, i.e., to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of
Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case
has remained pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED. Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.
ART 809. DEFECTS AND IMPERFECTIONS IN THE FORM AND LANGUAGE OF
ATTESTATION

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21151 February 25, 1924
In re will of Antonio Vergel de Dios, deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough for
appellants.
Eusebio Orense & Antonio M. Opisso for appellees.
ROMUALDEZ, J .:
The question in this case is as to the validity of the document Exhibit A as a will, which
was propounded by Ramon J. Fernandez for probate, and contested by Fernando
Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court of First Instance of
Manila having denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court in
holding the attestation fatally defective and in not finding Act No. 2645 void.
The defects attributed to the will by the contestants are as follows, to wit:
(a) It was not sufficiently proven that the testator knew the contents of the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the testator, or of each other,
nor with knowledge on the part of the testator that they were signing his will.
(f ) The witnesses did not sign the attestation clause before the death of the
testator.
(g) This clause was written after the execution of the dispositive part of the will
and was attached to the will after the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are not authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the
testator, the latter's mind was perfectly sane and he understood it: that he signed all the
pages of the will proper, although he did not sign the page containing the attestation
clause; that while he did not personally call the witnesses, yet the latter were invited by
Attorney Lopez Lizo to act as such in his presence. The law does not require that the
testator precisely be the person to request the witnesses to attest his will. It was also
sufficiently established in the record, beside being stated in the attestation clause, that
the testator signed the will in the presence of the three witnesses and that the latter, in
turn, signed it in the presence of the testator and of each other, the testator knowing
that the witnesses were signing his will; that the witnesses signed the attestation clause
before the death of the testator; that this clause, with the names of the witnesses in
blank, was prepared before the testator signed the will, and that the sheet containing
said clause, just as those of the will proper, was a loose sheet, and that all the four
sheets of which the will Exhibit A was actually composed were kept together and are the
very ones presented in this case; and finally, that the signatures of the testator on page
3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those mentioned by
the opponents, and it having been proven that the testator executed said will in a
language known by him and consciously, freely and spontaneously, it would seen
unnecessary to go further, and the matter might be brought to a close right here, by
holding the will in question valid and allowable to probate, were it not for the fact that the
trial court and the opponents questioned the sufficiency and validity of the attestation
clause because the sheet on which it is written is not numbered, and it is not stated
there that the testator signed on the margin of each sheet of the will in the presence of
the three witnesses, or that the latter signed it is the presence of the testator and of
each other, and specially because said attestation clause is not signed by the testator
either at the margin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true that it does
not appeal on the upper part of the sheet, but it does not appear in its text, the pertinent
part of which is copied hereinafter, with the words, having reference to the number of
sheets of the will, underscored, including the page number of the attestation:
* * * We certify that the foregoing document written in Spanish, a language
known by the testator Antonino Vergel de Dios, consisting of three sheet actually
used, correlatively enumerated, besides this sheet . . . .
If, as stated in this clause, the foregoing document consists of three sheets, besides
that of the clause itself, which is in singular, it is clear that such a sheet of the attestation
clause is the fourth and that the will, including said sheet, has four sheets. This
description contained in the clause in question constitutes substantial compliance with
the requirements prescribed by the law regarding the paging. So it was held by this
Court in the case of Abangan vs. Abangan (40 Phil., 476), where the sheet containing
the attestation, as well as the preceding one, was also not paged. Furthermore the law,
as we shall see later on, does not require that the sheet containing nothing but the
attestation clause, wholly or in part, be numbered or paged. Consequently this lack of
paging on the attestation sheet does not take anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated that the testator
signed on the margin of each sheet of the will, in the presence of the witnesses and the
latter in the presence of each other, let us see what is said in said clause on this point,
and to this end its pertinent part is hereinafter transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the aforesaid will in our
presence and we at his request did the same in his presence and in that of each
other as witnesses to the will, and lastly, the testator, as well as we, as
witnesses, signed in the same manner on the left margin of each sheet.
(Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant case mean, and it
in fact means nothing, but that the testator and the witnesses signed on the left margin
of each sheet of the will "in the same manner" in which they signed at the bottom
thereof, that is, the testator in the presence of the witnesses and the latter in the
presence of the testator and of each other. This phrase in the same manner cannot, in
view of the context of the pertinent part, refer to another thing, and was used here as a
suppletory phrase to include everything and avoid the repetition of a long and difficult
one, such as what is meant by it. The same section 618 of the Code of Civil Procedure,
in order to avoid the repetition of the same long phrase about the testator having signed
in the presence of the witnesses and the latter in the presence of each other, resorts to
a similar expression in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet
containing the attestation clause, this point was already decided in the above cited case
of Abangan vs. Abangan, where this court held that:
The testator's signature is not necessary in the attestation clause because this,
as its name implies, appertains only to the witnesses and not to the testator.
In that case of Abangan vs. Abangan it was held that the signature of the testator is not
necessary in the attestation clause, but the theory is not announced that such a clause
is unnecessary to the validity to the will.
For this reason such doctrine does not annul the judgment in the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among others, was laid
down that the attestation clause is necessary to the validity of the will. One of the points
on which greatest stress was laid in that case Uy Coque is that the requirements of the
law regarding the number of the pages used, the signing of the will and of each of its
pages by the testator in the presence of three witnesses, and the attestation and signing
of the will and of each of its pages by the witnesses in the presence of each other
cannot be proven aliunde but by the attestation clause itself which must express the
complaince of the will with such requirements. But it was not held in that case of Uy
Coque that the signature of the testator was necessary in the attestation clause, nor
was such point discussed there, which was the point at issue in the case of Abangan vs.
Abangan, supra.
The appellees, however, argue that such clause in the case of Abangan vs.
Abangan begins at the bottom and on the same sheet in which the testamentary
provision terminated, that is to say, the will properly speaking. Even then if it is intended
to commit misrepresentation or fraud, which are the things that with the requirements of
the law for the making and attesting of wills it is intended to avoid, it is just the same that
the clause; as in the case ofAbangan vs. Abangan, begins at the bottom of the will
properly speaking, as, like the case before us, it is wholly contained in a separate sheet.
The fact is that this separate sheet, containing the attestation clause wholly or in part, is
not signed any place by the testator in the case of Abangan vs. Abangan, as it is not in
the present case.
Section 618 of the code of Civil Procedure, as amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in general terms the requirements to be met
by a will executed after said Code took effect, to wit, that the language or dialect in
which it is written be known by the testator, that it be signed by the latter or by another
person in the name of the testator by his express direction and in his presence, and that
it be attested and signed by three or more credible witnesses in the presence of the
testator and of each other.
These general rules are amplified in the next two paragraphs as to the special
requirements for the execution of the will by the testator and the signing thereof by the
witnesses, with which the second paragraph of the section deals, and as to the
attestation clause treated in the third and last paragraph of said section 618.
For this reason the second paragraph of this section 618 says:
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, on the left margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will properly
speaking, without any reference whatsoever to the attestation clause not treated in this
second paragraph. It is in this second paragraph which deals only with the will (without
including the attestation clause), that the signature or name of the testator and those of
the witnesses are mentioned as necessary on the left margin of each and everyone of
the sheets of the will (not of the attestation clause), as well as the paging of said sheet
(of the will, and not of the attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary in the
attestation clause? Let us see the last paragraph of this section 618 of the Code which
already deals with the requirements for the attestation clause. This last paragraph reads
thus:
The attestation shall state the number of sheets or pages used, upon which the
will is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of each other.
As may be seen this last paragraph refers to the contents of the text of the attestation,
not the requirements or signatures thereof outside of its text. It does not require that the
attestation be signed by the testator or that the page or sheet containing it be
numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a complement, without
which it cannot be probate and with which only not aliunde (Uy Coque vs. Navas
L. Sioca , supra) may the requirements to be stated in its text be proven. The
attestation clause must be prepared and signed, as in the instant case, on the
same occasion on which the will is prepared and signed, in such a way that the
possibility of fraud, deceit or suppression of the will or the attestation clause be
reduced to a minimum; which possibility always exists, as experience shows, in
spite of the many precautions taken by the legislator to insure the true and free
expression of one's last will.
Second. That the will is distinct and different from the attestation, although both
are necessary to the validity of the will, similar, in our opinion, to
a document which is not public so long as it is not acknowledged before a notary,
the document being a distinct and different thing from the acknowledgment, each
of which must comply with different requisites, among which is the signature of
the maker which is necessary in the document but not in the acknowledgment
and both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in the second
paragraph of section 618 of the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance with the
requirements prescribed for the will.
In the case at bar the attestation clause in question states that the requirements
prescribed for the will were complied with, and this is enough for it, as such attestation
clause, to be held as meeting the requirements prescribed by the law for it.
The fact that in said clause the signature of the testator does not appear does not affect
its validity, for, as above stated, the law does not require that it be signed by the
testator.
We find no merit in the assignment of error raising the question as to the validity of Act
No. 2645, which is valid. For the purposes of this decision, it is not necessary to reason
out this conclusion, it being sufficient for the adjudication of this case to hold the first
error assigned by the appellants to have been demonstrated.
The foregoing conclusions lead us to hold, as we do here by hold, that the documents
Exhibit A, as the last will and testament of the deceased Antonio Vergel de Dios, meets
all the requirements prescribed by the low now in force and therefore it must be allowed
to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court proceed
with the probate of the will Exhibit A in accordance with law, without express
pronouncement as to costs. So ordered.
Street, Malcolm, Avancea and Johns, JJ., concur.


Separate Opinions
OSTRAND, J ., dissenting:
I dissent and think that the judgment appealed from should have been affirmed. In my
opinion, the decision of the Court affords a striking illustration of the old adage that "a
hard case makes bad law."





Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by
his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of
the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

REGALADO, J .:
Presented for resolution by this Court in the present petition for review on certiorari is
the issue of whether or not the attestation clause contained in the last will and testament
of the late Mateo Caballero complies with the requirements of Article 805, in relation to
Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at
his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted
by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will.
1
It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G.
Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the
testator.
2

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

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

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

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in the poor
state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
therein.
7

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

On April 5, 1988, the probate court rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D" clearly underscores the fact
that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this signature of
Mateo Caballero in Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisites of the law.
9

Undaunted by the said judgment of the probate court, petitioners elevated the case in
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision
10
affirming that of the
trial court, and ruling that the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may
be considered as having substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the attestation clause which
the oppositors claim to be defective is "we do certify that the testament
was read by him and the attestator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper
part of each page, as his Last Will and Testament, and he has signed the
same and every page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said testator and in the
presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will "in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely or ideally
perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law."
11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the
same was denied in the latter's resolution of January 14, 1992,
12
hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a
manner not in accord with the law and settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death.
13
Under the Civil Code, there are two kinds of wills which a
testator may execute.
14
the first kind is the ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation should state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witness, it shall
be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator
and the attesting witness.
15
hence it is likewise known as notarial will. Where the
attestator is deaf or deaf-mute, Article 807 requires that he must personally read the
will, if able to do so. Otherwise, he should designate two persons who would read the
will and communicate its contents to him in a practicable manner. On the other hand, if
the testator is blind, the will should be read to him twice; once, by anyone of the
witnesses thereto, and then again, by the notary public before whom it is
acknowledged.
16

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

However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause
likewise need not even be known to the attesting witnesses.
18
The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause shall be
interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the manner
of the execution the same.
19
It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law has
been observed.
20
It is made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so that in case of failure of
the memory of the attesting witnesses, or other casualty, such facts may still be
proved.
21

Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will,
22
should state (1) the number of the pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages;
23
whereas the
subscription of the signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the witnesses.
24

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

In its report, the Code Commission commented on the reasons of the law for requiring
the formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on
the law on wills in this Project consists in the liberalization of the manner
of their execution with the end in view of giving the testator more freedom
in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . .
29

2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the
three attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting witnesses
hereto.
30
Since it is the proverbial bone of contention, we reproduce it again for facility
of reference:
We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of
THREE PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will
and Testament and he has the same and every page thereof, on the
spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.
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 senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will is only to write
on the same paper the names of the witnesses, for the sole purpose of identification.
31

In Taboada vs. Rizal,
32
we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done
which the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such paper as the will
which was executed by the testator. As it involves a mental act, there would be no
means, therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of
the express requirements of the third paragraph of Article 805 of the Civil Code for
attestation clauses, fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed
is the fact that while it recites that the testator indeed signed the will and all its pages in
the presence of the three attesting witnesses and states as well the number of pages
that were used, the same does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the testator
and not the instrumental witnesses as it is immediately preceded by the words "as his
Last Will and Testament." On the other hand, although the words "in the presence of the
testator and in the presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then clearly lacking, in
the final logical analysis , is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in the disallowance of the will that
is here sought to be admitted to probate. Petitioners are correct in pointing out that the
aforestated defect in the attestation clause obviously cannot be characterized as merely
involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision
thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid
if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof
and at the left margin of each page by the three attesting witnesses, it certainly cannot
be conclusively inferred therefrom that the said witness affixed their respective
signatures in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the fact that it was
indeed signed, but it does not prove that the attesting witnesses did subscribe to the will
in the presence of the testator and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur
of effectivity.
33

We believe that the further comment of former Justice J.B.L. Reyes
34
regarding Article
809, wherein he urged caution in the application of the substantial compliance rule
therein, is correct and should be applied in the case under consideration, as well as to
future cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only
be with respect to the form of the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid should it be proved that the will
was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the
fact that the attesting witnesses signed each and every page of the will in the presence
of the testator and of each other.
35
In such a situation, the defect is not only in the form
or language of the attestation clause but the total absence of a specific element
required by Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no plausible way
by which we can read into the questioned attestation clause 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.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of
views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in Section 618 of Act No. 190,
the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No. 190 and the amendment thereto
were practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in
the case of Abangan vs. Abangan,
36
where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain
these primordial ends. Nonetheless, it was also emphasized that one must not lose
sight of the fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will, hence when an interpretation already given assures such ends,
any other interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded. The subsequent cases of Avera vs. Garcia,
37
Aldaba vs. Roque,
38
Unson
vs. Abella,
39
Pecson vs. Coronel,
40
Fernandez vs. Vergel de Dios, et al.,
41
and Nayve
vs. Mojal, et al.
42
all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities
that should be observed in the execution of wills are mandatory in nature and are to be
strictly construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,
43
In re Will of Andrada,
44
Uy Coque vs. Sioca,
45
In re Estate of
Neumark,
46
and Sano vs. Quintana.
47

Gumban vs. Gorecho, et al.,
48
provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of Gumban,
the attestation clause had failed to state that the witnesses signed the will and each and
every page thereof on the left margin in the presence of the testator. The will in question
was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned,
appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing
with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil.,
841), and ending with Sano vs. Quintana([1925], 48 Phil., 506). Appellee
counters with the citation of a series of cases beginning withAbangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924],
46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47
Phil., 152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel, namely, those
of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation clause
must estate the fact that the testator and the witnesses reciprocally saw
the signing of the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held that the fact
that the testator and the witnesses signed each and every page of the will
can be proved also by the mere examination of the signatures appearing
on the document itself, and the omission to state such evident facts does
not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the first place, the Mojal, decision was concurred in
by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December, 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The
law of the case is here found in section 61 of the Code of Civil Procedure
as amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that "No will .
. . shall be valid . . . unless . . .." It is further provided in the same section
that "The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that "The
will shall be disallowed in either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone carefully makes
use of the imperative, but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly
expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in the
case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original
text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court
that once more appeared to revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs. Morata,
49
Rodriguez vs.
Alcala,
50
Enchevarria vs. Sarmiento,
51
and Testate Estate of Toray
52
went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,
53
Rey vs.
Cartagena,
54
De Ticson vs. De Gorostiza,
55
Sebastian vs. Panganiban,
56
Rodriguez
vs. Yap,
57
Grey vs. Fabia,
58
Leynez vs. Leynez,
59
Martir vs. Martir,
60
Alcala vs. De
Villa,
61
Sabado vs.
Fernandez,
62
Mendoza vs. Pilapil,
63
and Lopez vs. Liboro,
64
veered away from the
strict interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is,
in accordance with the formalities prescribed by Section 618 of the Code
of Civil Procedure as amended by Act No. 2645. The Supreme Court of
the Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the
Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap,
G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically
gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To
turn this attitude into a legislative declaration and to attain the main
objective of the proposed Code in the liberalization of the manner of
executing wills, article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of article 829."
65

The so-called liberal rule, the Court said in Gil vs. Murciano,
66
"does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with precision.
They do not allow evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a probe into the will,
an exploration into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.
67

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















ART 810. HOLOGRAPHIC WILL

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J .:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the
probate of the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de
Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the
brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he
found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21,
22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be respected although it is
not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated
"FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and positively Identified her signature. They
further testified that their deceased mother understood English, the language in which
the holographic Will is written, and that the date "FEB./61 " was the date when said Will
was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix
acted by mistake and/or did not intend, nor could have intended the said Will to be her
last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia
that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month and year of its execution and that this should be
strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:
WHEREFORE, the document purporting to be the holographic Will of
Bibiana Roxas de Jesus, is hereby disallowed for not having been
executed as required by the law. The order of August 24, 1973 is hereby
set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will
of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of
the Civil Code which reads:
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.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688
of the Old Civil Code require the testator to state in his holographic Win the "year,
month, and day of its execution," the present Civil Code omitted the phrase Ao mes y
dia and simply requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will
is void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and
Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that
the required date includes the year, month, and day, and that if any of these is wanting,
the holographic Will is invalid. The respondent further contends that the petitioner
cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are
strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of
the statutory requirements regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of
which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of
the law on wigs in this Project consists in the liberalization of the manner
of their execution with the end in view of giving the testator more freedom
in expressing his last wishes, but with sufficien safeguards and restrictions
to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p.
103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27
SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his
last will and testament on the ground that any disposition made by the
testator is better than that which the law can make. For this reason,
intestate succession is nothing more than a disposition based upon the
presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed
in substantial compliance with the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win should be admitted to probate
(Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to
be considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil.
745).
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded
by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that
of two competing Wills executed on the same day, or of a testator becoming insane on
the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wins and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due execution. All the children
of the testatrix agree on the genuineness of the holographic Will of their mother and that
she had the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is
not sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.












Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR,petitioners-
appellants,
vs.
COURT OF APPEALS,
1
GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J .:
The sole issue in this case is whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 810
2
of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador
died in the Municipality of Iba, province of Zambales, where he was residing, leaving
behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title
No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus,
Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a
holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs),
Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the
probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the
late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted
by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground
that the will has been extinguished or revoked by implication of law, alleging therein that
on September 30, 1971, that is, before Melecio's death, for the consideration of Six
Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916
and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and
Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land
which Sagrado allegedly had already acquired by devise from their father Melecio
Labrador under a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the fact that the
aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court
rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute sale. The court a
quo had also directed the respondents (the defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of P5,000.00 representing the redemption price for
the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from
December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10,
1988 modified said joint decision of the court a quo by denying the allowance of the
probate of the will for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF
THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE
FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE
WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted
as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property
and assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the
boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time
for me to partition the fishponds which were and had been bought or
acquired by us, meaning with their two mothers, hence there shall be no
differences among themselves, those among brothers and sisters, for it is
I myself their father who am making the apportionment and delivering to
each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and
sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this
that should be followed and complied with in order that any differences or
troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of
Bayog, it is their right to get if they so need, in order that there shall be
nothing that anyone of them shall complain against the other, and against
anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property
is located, the same being the fruits of our earnings of the two mothers of
my children, there shall be equal portion of each share among
themselves, and or to be benefitted with all those property, which property
we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL)
which I am here hereof manifesting of the truth and of the fruits of our
labor which their two mothers, I am signing my signature below hereof,
and that this is what should be complied with, by all the brothers and
sisters, the children of their two mothers JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made
this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p.
46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although
the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with
Article 810. It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
(emphasis supplied) (p. 46,Rollo)
The law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in the
hand of the testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and
his beneficiaries entered into an agreement among themselves about "the partitioning
and assigning the respective assignments of the said fishpond," and was not the date of
execution of the holographic will; hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783 which defines a will as
"an act whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the paragraph.
As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was executing was a will. The act of partitioning
and the declaration that such partitioning as the testator's instruction or decision to be
followed reveal that Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to repurchase to Navat for P5,000,
they were actually selling property belonging to another and which they had no authority
to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from
Navat for P5,000, to immediately regain possession of the property for its disposition in
accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988
is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents are directed to REIMBURSE the
petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes
1 Penned by Justice Jorge S. Imperial and concurred in by Justices Jose
A.R. Melo and Manuel C. Herrera
2 Article 810 provides: 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.






Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.
SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS
and JAMES D. SEANGIO, Respondents.
D E C I S I O N
AZCUNA, J .:
This is a petition for certiorari
1
with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders,
dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila,
Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in
the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-
93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of
the RTC, and praying for the appointment of private respondent Elisa D. Seangio
Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They likewise
reiterated that the probate proceedings should take precedence over SP. Proc. No. 98
90870 because testate proceedings take precedence and enjoy priority over intestate
proceedings.
2

The document that petitioners refer to as Segundos holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko
at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na
ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China
Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r]
ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi.
3

(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No.
9993396 were consolidated.
4

On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings
5
primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally,
the authority of the probate court is limited only to a determination of the extrinsic
validity of the will; 2) private respondents question the intrinsic and not the extrinsic
validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent;
and, 4) the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.
6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio,
et al., clearly shows that there is preterition, as the only heirs mentioned thereat are
Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code
thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854
does not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate
Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for respondents
to have tolerated the probate of the will and allowed the case to progress when, on its
face, the will appears to be intrinsically void would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will was
resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED
without pronouncement as to costs.
SO ORDERED.
7

Petitioners motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
THE TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY
AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN
THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE
PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice
of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states,Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of
a compulsory heir. Thus, there is no preterition in the decedents will and the
holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory
heirs in the direct line of Segundo were preterited in the holographic will since there was
no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must
be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation has been
found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage
with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who
disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;
8

(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, 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.
Segundos document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latters property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.
10

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.
11

Holographic wills, therefore, being usually prepared by one who is not learned in the
law, as illustrated in the present case, should be construed more liberally than the ones
drawn by an expert, taking into account the circumstances surrounding the execution of
the instrument and the intention of the testator.
12
In this regard, the Court is convinced
that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended
by Segundo to be his last testamentary act and was executed by him in accordance
with law in the form of a holographic will. Unless the will is probated,
13
the disinheritance
cannot be given effect.
14

With regard to the issue on preterition,
15
the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It was, in the Courts opinion, Segundos
last expression to bequeath his estate to all his compulsory heirs, with the sole
exception of Alfredo. Also, Segundo did not institute an heir
16
to the exclusion of his
other compulsory heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.1wphi1
Considering that the questioned document is Segundos holographic will, and that the
law favors testacy over intestacy, the probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be
rendered nugatory.
17

In view of the foregoing, the trial court, therefore, should have allowed the holographic
will to be probated. It is settled that testate proceedings for the settlement of the estate
of the decedent take precedence over intestate proceedings for the same purpose.
18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
ART 811. PROBATE OF HOLOGRAPHIC WILL

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J .:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves
the determination of the quantity of evidence required for the probate of a holographic
will.
The established facts are thus summarized in the decision appealed from (Rec. App.
pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City,
known to be the last residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said holographic will
(Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the
nephew of deceased Cesario Singson; that witness Francisco Azaola testified
that he saw the holographic will (Exh. C) one month, more or less, before the
death of the testatrix, as the same was handed to him and his wife; that the
witness testified also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special power of the
attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the
deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there
were further exhibited in court two residence certificates (Exhs. H and H-1) to
show the signatures of the testatrix, for comparison purposes; that said witness,
Azaola, testified that the penmanship appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the signatures appearing
in the aforesaid documentary evidence is in the handwriting of the testatrix as
well as the signatures appearing therein are the signatures of the testatrix; that
said witness, in answer to a question of his counsel admitted that the holographic
will was handed to him by the testatrix. "apparently it must have been written by
her" (t.s.n., p. 11). However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by counsel if he was
familiar with the penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was asked again
whether the penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely
say it is hers"; that it was also established in the proceedings that the assessed
value of the property of the deceased in Luskot, Quezon City, is in the amount of
P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner
and his wife, and (2) that the testatrix did not seriously intend the instrument to be her
last will, and that the same was actually written either on the 5th or 6th day of August
1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and because
the lone witness presented by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, 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 of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he
was not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the execution of a holographic will,
none being required by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any
three witnesses; they must be witnesses "who know the handwriting and signature of
the testator" and who can declare (truthfully, of course, even if the law does not so
express) "that the will and the signature are in the handwriting of the testator". There
may be no available witness of the testator's hand; or even if so familiarized, the
witnesses may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of Article 811 may thus become an impossibility. That is evidently the
reason why the second paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph,
and if the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement
can be considered mandatory only in the case of ordinary testaments, precisely
because the presence of at least three witnesses at the execution of ordinary wills is
made by law essential to their validity (Art. 805). Where the will is holographic, no
witness need be present (Art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if
the Court deem it necessary", which reveal that what the law deems essential is that the
Court should be convinced of the will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the ill is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is convincing, the Court
may still, and in fact it should, resort to handwriting experts. The duty of the Court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889,
the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho
precepto induce la conclusion de que siempre o por lo menos, en la mayor parte
de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de
la autenticidad del testamento olografo, aunque ya esten insertas en los autos
del expediente las declaraciones testificales. La prudencia con que el Juez debe
de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada
y peligrosa del testamento olografo lo hace necesario para mayor garantia de
todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del
dicho profano de los testigos y un modo de desvanecer las ultimas dudas que
pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y
declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que
el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos
respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos
y de su significacion, para responder debidamente de las resoluciones que haya
de dictar.
And because the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert evidence, until
and unless the court expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called
upon to construe the import of said article, the interest of justice would be better served,
in our opinion, by giving the parties ample opportunity to adduce additional evidence,
including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records
ordered remanded to the Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on record shall not be retaken. No
costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David,
JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J .:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the
City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking
ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr.
.............................................
5 Bahagi
Fausto E. Gan
.........................................................
2 Bahagi
Rosario E. Gan
.........................................................
2 Bahagi
Filomena Alto
..........................................................
1 Bahagi
Beatriz Alto
..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking
pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,
1
refused to probate the alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first
cousin, Vicente Esguerra, her desire to make a will. She confided however that it would
be useless if her husband discovered or knew about it. Vicente consulted with Fausto E.
Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter
replied it could be done without any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic
will substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read
the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra.
But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and
being afraid of him by reason of his well-known violent temper, she delivered it to him.
Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand
it the next day shortly before the death of Felicidad. Again, Felina handed it to him but
not before she had taken the purse to the toilet, opened it and read the will for the last
time.
2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from
heart disease for several years before her death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks she
was treated for the disease; that thereafter she felt well and after visiting interesting
places, the couple returned to this country in August 1950. However, her ailment
recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed,
her head held high by her husband. Injections and oxygen were administered. Following
the doctor's advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her side. These two
persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no
will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to
keep her will a secret, so that her husband would not know it, it is strange she executed
it in the presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have allowed the former to see and
read the will several times; (c) it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from her husband she would carry
it around, even to the hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the petitioner being precisely that the
will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's
evidence that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the
oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the
same arguments, or most of them, were presented in the motion to reconsider; but they
failed to induce the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same
matters, because in our opinion the case should be decided not on the weakness of the
opposition but on the strength of the evidence of the petitioner, who has the burden of
proof.
The Spanish Civil Code permitted the execution of holographic wills along with other
forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only
one form, thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "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."
This is indeed a radical departure from the form and solemnities provided for wills under
Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the
testator and three credible witnesses in each andevery page; such witnesses to attest to
the number of sheets used and to the fact that the testator signed in their presence and
that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith
and fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed
the testator would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be
brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40
Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such
will is submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If
there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of
other additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances its due execution.
Now, 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" says the
New Civil Code, "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 witnesses so presented do not need to have seen the execution of the holographic
will. They may be mistaken in their opinion of the handwriting, or they may deliberately
lie in affirming it is in the testator's hand. However, the oppositor may present other
witnesses who also know the testator's handwriting, or some expert witnesses, who
after comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50,
Rule 123). And the court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will submitted to it has
indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity
3

the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in
the testator's handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge
of the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent's witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in
the knowledge that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the handwriting of
the deceased. Of course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not foresee such a
move and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the court and the oppositor would
practically be at the mercy of such witness (or witnesses) not only as to the execution,
but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or
destroyed will by secondary evidence the testimony of witnesses, in lieu of the
original document. Yet such Rules could not have contemplated holographic wills which
could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil
Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will
is that it may be lost or stolen
4
an implied admission that such loss or theft renders it
useless..
This must be so, because the Civil Code requires it to be protocoled and presented to
the judge, (Art. 689) who shall subscribe it and require its identity to be established by
the three witnesses who depose that they have no reasonable doubt that the will was
written by the testator (Art. 691). And if the judge considers that the identity of the will
has been proven he shall order that it be filed (Art. 693). All these, imply presentation of
the will itself. Art. 692 bears the same implication, to a greater degree. It requires that
the surviving spouse and the legitimate ascendants and descendants be summoned so
that they may make "any statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the holographic will is usually
done by the testator and by himself alone, to prevent others from knowing either its
execution or its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whetherin the face of
the document itself they think the testator wrote it. Obviously, this they can't do
unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it
spurious.
5
Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, because anyway the
relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilegeto comply with the will, if genuine, a
right which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the
decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence (which was
controverted), ascribing the mutilation to the opponents of the will. The aforesaid
tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the
will itself, whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo
del articulo 688 del Codigo civil, que para que sea valido el testamento olografo
debera estar escrito todo el y firmado por testador, con expression del ao, mes
y dia en que se otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de que cuando
se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada
redaccion el precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Autoridad competente, para
au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por
el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion
por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly
the basis of the Spanish Civil Code provisions on the matter.
6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E
depues que los herederos e sus fijos ovieren esta manda, fasta ... annos
muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo
la manda; e por aquellos escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta
manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and
signature.
7

Parenthetically, it may be added that even the French Civil Law considers the loss of
the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por
Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the
execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will.
8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference 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, now). 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 case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were intimates or trusted
friends of the testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the
will.
Whereas in the case of holographic wills, if oral testimony were admissible
9
only one
man could engineer the fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no interest, could
easily fall for it, and in court they would in all good faith affirm its genuineness and
authenticity. The will having been lost the forger may have purposely destroyed it in
an "accident" the oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the holographic will may consist
of two or three pages, and only one of them need be signed, the substitution of the
unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills
listed by Castan, Sanchez Roman and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.
10

One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost holographic will, the witnesses would
testify as to their opinion of the handwriting which they allegedly saw, an opinion which
can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the
trial judge's disbelief. In addition to the dubious circumstances described in the
appealed decision, we find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a share, or threaten
to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not entrust it to
her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip
to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up to that "clear and distinct"
proof required by Rule 77, sec. 6.
11

Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.
B. L., Endencia and Felix, JJ., concur.


















Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J .:
This case was certified to this Tribunal by the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in Gam v.
Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise,
executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with
another case Sp. Proc. No, 8275). Their motion was granted by the court
in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an instruction as
to the management and improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the
court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that
the order was contrary to law and settled pronouncements and rulings of
the Supreme Court, to which the appellant in turn filed an opposition. On
July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held
that 'in the matter of holographic wills the law, it is reasonable to suppose,
regards the document itself as the material proof of authenticity of said
wills.
MOREOVER, this Court notes that the alleged holographic will was
executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the fact that the original
of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary to
law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that
the appeal does not involve question of fact and alleged that the trial court committed
the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT
HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found
can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three Identifying witnesses are required. However, if
the holographic will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen and/or read
such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court," Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ.,
concur.
FIRST DIVISION
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS,respondents.
D E C I S I O N
PARDO, J .:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals
[1]
and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers, enough to probate said
will. Reversal of the judgment

appealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has shown no right to relief, if the motion
is granted and the order to dismissal is reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing
the probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.
[2]

The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition
[3]
for probate of the holographic will of the deceased, who died on January 16,
1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August 30,
1978, that there was no fraud, undue influence, and duress employed in the person of
the testator, and the will was written voluntarily.
The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.
[4]

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition
[5]
to the petition for probate, alleging that the holographic will was a forgery
and that the same is even illegible. This gives an impression that a third hand of an
interested party other than the true hand of Matilde Seo Vda. de Ramonal executed
the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on the will
after every disposition is out of the ordinary. If the deceased was the one who executed
the will, and was not forced, the dates and the signature should appear at the bottom
after the dispositions, as regularly done and not after every disposition. And assuming
that the holographic will is in the handwriting of the deceased, it was procured by undue
and improper pressure and influence on the part of the beneficiaries, or through fraud
and trickery.
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a demurrer
[6]
to
evidence, claiming that respondents failed to establish sufficient factual and legal basis
for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence
having being well taken, same is granted, and the petition for probate of the document
(Exhibit S) on the purported Holographic Will of the late Matilde Seo Vda. de
Ramonal, is denied for insufficiency of evidence and lack of merits.
[7]

On December 12, 1990, respondents filed a notice of appeal,
[8]
and in support of
their appeal, the respondents once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was
filed. He produced and identified the. records of the case. The documents presented
bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of
laying the basis for comparison of the handwriting of the testatrix, with the writing
treated or admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce
and identify the voters affidavit of the decedent. However, the voters affidavit was not
produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter lived
with her in her parents house for eleven (11) years, from 1958 to 1969. During those
eleven (11) years of close association with the deceased, she acquired familiarity with
her signature and handwriting as she used to accompany her (deceased Matilde Seo
Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings,
and the deceased always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde
Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was
personally and entirely written, dated and signed, by the deceased and that all the
dispositions therein, the dates, and the signatures in said will, were that of the
deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan
de Oro, he was a practicing lawyer, and handled all the pleadings and documents
signed by the deceased in connection with the intestate proceedings of her late
husband, as a result of which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified that she
processed the application of the deceased for pasture permit and was familiar with the
signature of the deceased, since the deceased signed documents in her presence,
when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived
with the deceased since birth, and was in fact adopted by the latter. That after a long
period of time she became familiar with the signature of the deceased. She testified
that the signature appearing in the holographic will is the true and genuine signature of
Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R.
Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline
R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision
[9]
ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil.
102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court
of Appeals held:
x x x even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present civil code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have been
present at the execution of the holographic will, none being required by law (art. 810,
new civil code), it becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must be witnesses
who know the handwriting and signature of the testator and who can declare
(truthfully, of course, even if the law does not express) that the will and the signature
are in the handwriting of the testator. There may be no available witness acquainted
with the testators hand; or even if so familiarized, the witness may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second paragraph of
article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino
v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need
be present (art.10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Art.811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the
court should be convinced of the wills authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand,
if no competent witness is available, or none of those produced is convincing, the court
may still, and in fact it should resort to handwriting experts. The duty of the court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production of three
witnesses is merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available lines of
inquiry, for the state is as much interested in the proponent that the true intention of the
testator be carried into effect. And because the law leaves it to the trial court to decide
if experts are still needed, no unfavorable inference can be drawn from a partys failure
to offer expert evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
[10]

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay
and other witnesses definitely and in no uncertain terms testified that the handwriting
and signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove that the
date, text, and signature on the holographic will were written entirely in the
hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in
the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil
Code are permissive or mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three witnesses explicitly declare
that the signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a mandatory order. We have ruled that shall in
a statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word shall, when used in a statute is
mandatory.
[11]

Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to
the wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the wishes of
the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased. An exhaustive and objective consideration of
the evidence is imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said court. He was not
presented to declare explicitly that the signature appearing in the holographic was that
of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented
to identify the signature of the deceased in the voters affidavit, which was not even
produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your
parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was
your occupation or how did Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.
[12]

x x x
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir.
[13]

x x x
Q. Showing to you the receipt dated 23 October 1979, is this the one you are
referring to as one of the receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is
that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
kept records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De
Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.
[14]

x x x
Q. In addition to collection of rentals, posting records of accounts of tenants and
deed of sale which you said what else did you do to acquire familiarity of the
signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.
[15]

x x x
Q. You testified that at the time of her death she left a will. I am showing to you a
document with its title tugon is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit S, there is that handwritten tugon, whose
handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.
[16]

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact
that the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late
Matilde Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mothers possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in
the possession of your mother?
A. 1985.
[17]

x x x
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will
to you and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.
[18]

In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in issue
her motive of keeping the will a secret to petitioners and revealing it only after the death
of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that
correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she
could go to her building to collect rentals, is that correct?
A. Yes, sir.
[19]

x x x
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there
are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.
[20]

x x x
Q. Now, that was 1979, remember one year after the alleged holographic will. Now,
you identified a document marked as Exhibit R. This is dated January 8,1978
which is only about eight months from August 30,1978. Do you notice that the
signature Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy
was not sickly and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you
just tried to explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same year as the
alleged holographic will. In exhibit I, you will notice that there is no retracing;
there is no hesitancy and the signature was written on a fluid movement. x x x
And in fact , the name Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature
appearing in the alleged holographic will marked as Exhibit X but in the
handwriting themselves, here you will notice the hesitancy and tremors, do you
notice that?
A. Yes, sir.
[21]

Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo
Ramonal for the period of 22 years. Could you tell the court the services if any
which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her
transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her
lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.
[22]

x x x
Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30,
1978 there is a signature here below item No. 1, will you tell this court whose
signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.
[23]

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.
[24]

x x x
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal
have legitimate children?
A. As far as I know they have no legitimate children.
[25]

x x x
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in
what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the
court before.
[26]

x x x
Q. Appearing in special proceeding no. 427 is the amended inventory which is
marked as exhibit N of the estate of Justo Ramonal and there appears a
signature over the type written word Matilde vda de Ramonal, whose signature is
this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.
[27]

x x x
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what
were the other assistance wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.
[28]

x x x
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the
handwriting contained in that document marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can
you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell
the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de
Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is
this?
A. The same is true with the signature in item no. 4. It seems that they are
similar.
[29]

x x x
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de
Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you
have made?
A. That is true.
[30]

From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson,
[31]
ruling that the requirement
is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,
[32]
we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the exercise of the right
to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as
the will of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of
the respondents, who kept it even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five
years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her during
her lifetime. The only chance at comparison was during the cross-examination of Ms.
Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of the holographic will and she
is not a handwriting expert. Even the former lawyer of the deceased expressed doubts
as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The signature of
the testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,
[33]
and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,
[34]
and a letter dated June 16, 1978,
[35]
the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain
that the holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.
Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.













ART 814. INSERTION, CANCELLATION, ERASURE OR ALTERATION IN A
HOLOGRAPHIC WILL MUST BE AUTHENTICATED BY TESTATOR

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J .:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the
sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of
First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will
executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of
sound and disposing mind and memory, do hereby declare thus to be my last will and
testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable monument to perpetuate my
memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as
her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the holographic Will contained alterations,
corrections, and insertions without the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should be given effect
and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3,
reading in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of
the decedent, Natividad K. Kalaw. The only question is whether the win,
Exhibit 'C', should be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly understood, that
the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil
Code is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the admission to probate
of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were the testatrix, the denial to probate of her holographic
Will would be contrary to her right of testamentary disposition. Reconsideration was
denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil
Code being , clear and explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not theoriginal unaltered text after
subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her
as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined.1 Manresa gave an Identical commentary when he said
"la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895."
2

However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change of mind of
the testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was
derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la validez o eficacia
de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones
necesarias para la validez del testamento olografo, ya porque, de admitir
lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no
salvadas, que en nada afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el
art. 26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices,
siempre que no se salven en la forma prevenida, paro no el documento
que las contenga, y con mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan importancia ni susciten duda
alguna acerca del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este
ultimo fallo, es preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni
uarien de modo substancial la express voluntad del testador manifiesta en
el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916,
que declara nulo un testamento olografo por no estar salvada por el
testador la enmienda del guarismo ultimo del ao en que fue
extendido
3
(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge,
dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.


Separate Opinions

TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the
trial court's factual finding that the peculiar alterations in the holographic will crossing
out Rosa's name and instead inserting her brother Gregorio's name as sole heir and
"sole executrix" were made by the testatrix in her own handwriting. (I find it peculiar that
the testatrix who was obviously an educated person would unthinkingly make such
crude alterations instead of consulting her lawyer and writing an entirely new
holographic wig in order to avoid any doubts as to her change of heir. It should be noted
that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
"sole executrix" is initialed.) Probate of the radically altered will replacing Gregorio for
Rosa as sole heir is properly denied, since the same was not duly authenticated by the
full signature of the executrix as mandatorily required by Article 814 of the Civil Code.
The original unaltered will naming Rosa as sole heir cannot, however, be given effect in
view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole
heir. The net result is that the testatrix left no valid will and both Rosa and Gregorio as
her next of kill succeed to her intestate estate.


Separate Opinions
TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the
trial court's factual finding that the peculiar alterations in the holographic will crossing
out Rosa's name and instead inserting her brother Gregorio's name as sole heir and
"sole executrix" were made by the testatrix in her own handwriting. (I find it peculiar that
the testatrix who was obviously an educated person would unthinkingly make such
crude alterations instead of consulting her lawyer and writing an entirely new
holographic wig in order to avoid any doubts as to her change of heir. It should be noted
that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
"sole executrix" is initialed.) Probate of the radically altered will replacing Gregorio for
Rosa as sole heir is properly denied, since the same was not duly authenticated by the
full signature of the executrix as mandatorily required by Article 814 of the Civil Code.
The original unaltered will naming Rosa as sole heir cannot, however, be given effect in
view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole
heir. The net result is that the testatrix left no valid will and both Rosa and Gregorio as
her next of kill succeed to her intestate estate.