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Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
ON. !U"GE GUILLERMO P. #ILLASOR, Pre$%&%'( !)&(e o* +r,'-. I, Co)r/ o*
0%r$/ I'$/,'-e o* Ceb), ,'& MANUEL +. LUGA1, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
Petition to revie on certiorari the !ud"#ent of the $ourt First Instance of $ebu
alloin" the probate of the last ill a testa#ent of the late Valente %. $ru&.
Petitioner'appellant ("apita N. $ru&, the survivin" spouse of the said decease
opposed the alloance of the ill )*+hibit ,*,-, alle"in" the ill as e+ecuted
throu"h fraud, deceit, #isrepresentation and undue in.uence/ that the said
instru#ent as e+ecute ithout the testator havin" been full0 infor#ed of the
content thereof, particularl0 as to hat properties he as disposin" and that the
supposed last ill and testa#ent as not e+ecuted in accordance ith la.
Notithstandin" her ob!ection, the $ourt alloed the probate of the said last ill
and testa#ent 1ence this appeal b0 certiorari hich as "iven due course.
The onl0 2uestion presented for deter#ination, on hich the decision of the case
hin"es, is hether the supposed last ill and testa#ent of Valente %. $ru& )*+hibit
,*,- as e+ecuted in accordance ith la, particularl0 (rticles 345 and 346 of the
ne $ivil $ode, the 7rst re2uirin" at least three credible itnesses to attest and
subscribe to the ill, and the second re2uirin" the testator and the itnesses to
ac8noled"e the ill before a notar0 public.
Of the three instru#ental itnesses thereto, na#el0 Deo"racias T. 9a#aloas 9r., Dr.
Francisco Pa:ares and (tt0. (n"el 1. Teves, 9r., one of the#, the last na#ed, is at the
sa#e ti#e the Notar0 Public before ho# the ill as supposed to have been
ac8noled"ed. Reduced to si#pler ter#s, the 2uestion as attested and subscribed
b0 at least three credible itnesses in the presence of the testator and of each
other, considerin" that the three attestin" itnesses #ust appear before the notar0
public to ac8noled"e the sa#e. (s the third itness is the notar0 public hi#self,
petitioner ar"ues that the result is that onl0 to itnesses appeared before the
notar0 public to ac8noled"e the ill. On the other hand, private respondent'
appellee, Manuel ;. <u"a0, ho is the supposed e+ecutor of the ill, folloin" the
reasonin" of the trial court, #aintains that there is substantial co#pliance ith the
le"al re2uire#ent of havin" at least three attestin" itnesses even if the notar0
public acted as one of the#, bolsterin" up his stand ith 5= (#erican
9urisprudence, p. >>= hich, insofar as pertinent, reads as follos?
It is said that there are, practical reasons for upholdin" a ill as a"ainst
the purel0 technical reason that one of the itnesses re2uired b0 la
si"ned as certif0in" to an ac8noled"#ent of the testator@s si"nature
under oath rather than as attestin" the e+ecution of the instru#ent.
(fter ei"hin" the #erits of the con.ictin" clai#s of the parties, Ae are inclined to
sustain that of the appellant that the last ill and testa#ent in 2uestion as not
e+ecuted in accordance ith la. The notar0 public before ho# the ill as
ac8noled"ed cannot be considered as the third instru#ental itness since he
cannot ac8noled"e before hi#self his havin" si"ned the ill. To ac8noled"e
before #eans to avo )9avellana v. <edes#a, B= Phil. >53, >6>/ $astro v. $astro,
C44 Phil. >DB, >E=-/ to on as "enuine, to assent, to ad#it/ and ,before, #eans in
front or precedin" in space or ahead of. )The Ne Aebster *nc0clopedic Dictionar0
of the *n"lish <an"ua"e, p. =>/ Fun8 F Aa"nalls Ne Standard Dictionar0 of the
*n"lish <an"ua"e, p. >5>/ Aebster@s Ne International Dictionar0 >d. p. >E5.-
$onse2uentl0, if the third itness ere the notar0 public hi#self, he ould have to
avo assent, or ad#it his havin" si"ned the ill in front of hi#self. This cannot be
done because he cannot split his personalit0 into to so that one ill appear before
the other to ac8noled"e his participation in the #a8in" of the ill. To per#it such
a situation to obtain ould be sanctionin" a sheer absurdit0.
Further#ore, the function of a notar0 public is, a#on" others, to "uard a"ainst an0
ille"al or i##oral arran"e#ent ;alinon v. De <eon, 54 4. G. 53D.- That function
ould defeated if the notar0 public ere one of the attestin" instru#ental
itnesses. For the# he ould be interested sustainin" the validit0 of the ill as it
directl0 involves hi# and the validit0 of his on act. It ould place hi# in
inconsistent position and the ver0 purpose of ac8noled"#ent, hich is to #ini#i&e
fraud )Report of $ode $o##ission p. C46'C4=-, ould be tharted.
(d#ittedl0, there are (#erican precedents holdin" that notar0 public #a0, in
addition, act as a itness to the e+ecutive of the docu#ent he has notari&ed.
)Mahilu# v. $ourt (ppeals, 6E 4. G. E4C=/ C= S$R( E3>/ Sa0er v. $o+, ED Ill. CD4-.
There are others holdin" that his si"nin" #erel0 as notar0 in a ill nonetheless
#a8es hi# a itness thereon )Fer"uson v. Fer"uson, E= S. *. >d. DE6/ In Re Dou"las
Aill, N. H. S. >d. 6EC/ Ra"sdal v. 1ill, >6B S. A. >d. BCC, T0son Itterbac8, C>> So.
EB6/ In Re ;a0bee@s *state C64 N. B44/ A. Merill v. ;oal, CD> (. =>C/See
also Trenith v. S#allood, C5 So. C4D4-. ;ut these authorities do not serve the
purpose of the la in this !urisdiction or are not decisive of the issue herein because
the notaries public and itnesses referred to aforecited cases #erel0 acted as
instru#ental, subscribin" attestin" itnesses, and not as acknowledging itnesses.
1e the notar0 public acted not onl0 as attestin" itness but also ac8noled"in"
itness, a situation not envisa"ed b0 (rticle 345 of the $ivil $ode hich reads?
(RT. 346. *ver0 ill #ust be acknowledged before a notary public by
the testator and the witnesses. The notar0 public shall not be re2uired
to retain a cop0 of the ill or 7le another ith the oJce of the $ler8 of
$ourt. K*#phasis suppliedL
To allo the notar0 public to act as third itness, or one the attestin" and
ac8noled"in" itnesses, ould have the eMect of havin" onl0 to attestin"
itnesses to the ill hich ould be in contravention of the provisions of (rticle 345
be re2uirin" at least three credible itnesses to act as such and of (rticle 346 hich
re2uires that the testator and the re2uired nu#ber of itnesses #ust appear before
the notar0 public to ac8noled"e the ill. The result ould be, as has been said,
that onl0 to itnesses appeared before the notar0 public for or that purpose. In
the circu#stances, the la ould not be dul0 in observed.
FOR (<< T1* FOR*GOING, the !ud"#ent appealed fro# is hereb0 reversed and the
probate of the last ill and testa#ent of Valente %. $ru& )*+hibit ,*,- is declared not
valid and hereb0 set aside.
$ost a"ainst the appellee.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7179 June 30, 1955
Testate Estate of te Late !"o#$na%$a Le&es'a. (EL)C)*!* J!+ELL!N!, petitioner-
appellee,
vs.
*O,! M!TE! LE*ESM!, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
RE-ES, J...L., J./
By order of July !, "#$!, the Court of %irst &nstance of &loilo ad'itted to probate the docu'ents
in the (isayan dialect, 'ar)ed E*hibits + and E, as the testa'ent and codicil duly e*ecuted by
the deceased +a. Apolinaria ,edes'a (da. de Javellana, on March !-, "#$-, and May #,
"#$, respectively, .ith Ra'on /abiana, 0loria Montinola de /abiana and (icente 1ap as
.itnesses. /he contestant, +a. Matea ,edes'a, sister and nearest survivin2 relative of said
deceased, appealed fro' the decision, insistin2 that the said e*hibits .ere not e*ecuted in
confor'ity .ith la.. /he appeal .as 'ade directly to this Court because the value of the
properties involved e*ceeded t.o hundred thousand pesos.
3ri2inally the opposition to the probate also char2ed that the testatri* lac)ed testa'entary
capacity and that the dispositions .ere procured throu2h undue influence. /hese 2rounds .ere
abandoned at the hearin2 in the court belo., .here the issue .as concentrated into three
specific 4uestions5 6"7 .hether the testa'ent of "#$- .as e*ecuted by the testatri* in the
presence of the instru'ental .itnesses8 67 .hether the ac)no.led2'ent clause .as si2ned
and the notarial seal affi*ed by the notary .ithout the presence of the testatri* and the
.itnesses8 and 6!7 if so, .hether the codicil .as thereby rendered invalid and ineffective. /hese
4uestions are the sa'e ones presented to us for resolution.
/he contestant ar2ues that the Court belo. erred in refusin2 credence to her .itnesses Maria
Padero2ao and (idal Allado, coo) and driver, respectively, of the deceased Apolinaria ,edes'a.
Both testified that on March !-, "#$-, they sa. and heard (icente 1ap 6one of the .itnesses to
the .ill7 infor' the deceased that he had brou2ht the 9testa'ento9 and ur2e her to 2o to
attorney /abiana:s office to si2n it8 that +a. Apolinaria 'anifested that she could not 2o, because
she .as not feelin2 .ell8 and that upon 1ap:s insistence that the .ill had to be si2ned in the
attorney:s office and not else.here, the deceased too) the paper and si2ned it in the presence
of 1ap alone, and returned it .ith the state'ent that no one .ould 4uestion it because the
property involved .as e*clusively hers.
3ur e*a'ination of the testi'ony on record discloses no 2rounds for reversin2 the trial Court:s
re;ection of the i'probable story of the .itnesses. &t is s4uarely contradicted by the concordant
testi'ony of the instru'ental .itnesses, (icente 1ap, Atty. Ra'on /abiana, and his .ife 0loria
Montinola, .ho asserted under oath that the testa'ent .as e*ecuted by testatri* and .itnesses
in the presence of each other, at the house of the decedent on 0eneral <u2hes =t., &loilo City,
on March !-, "#$-. And it is hi2hly unli)ely, and contrary to usa2e, that either /abiana or 1ap
should have insisted that +a. Apolinaria, an infir' lady then over >- years old, should leave her
o.n house in order to e*ecute her .ill, .hen all three .itnesses could have easily repaired
thither for the purpose. Moreover, the cross-e*a'ination has revealed fatal fla.s in the
testi'ony of Contestant:s .itnesses. Both clai' to have heard the .ord 9testa'ento9 for the first
ti'e .hen 1ap used it8 and they clai'ed ability to recall that .ord four years later, despite the
fact that the ter' 'eant nothin2 to either. &t is .ell )no.n that .hat is to be re'e'bered 'ust
first be rationally conceived and assi'ilated 6&& Moore on %acts, p. >>?7. ,i)e.ise, Maria
Padero2ao .as positive that 1ap brou2ht the .ill, and that the deceased alone si2ned it,
precisely on March !-, "#$-8 but she could re'e'ber no other date, nor 2ive satisfactory
e*planation .hy that particular day stuc) in her 'ind. @orse still, Allado clai'ed to have heard
.hat alle2edly transpired bet.een 1ap and +a. Apolinaria fro' the )itchen of the house, that
.as later proved to have been separated fro' the deceased:s 4uarters, and standin2 at a 'uch
lo.er level, so that conversations in the 'ain buildin2 could not be distinctly heard fro' the
)itchen. ,ater, on redirect e*a'ination, Allado sou2ht to cure his testi'ony by clai'in2 that he
.as upstairs in a roo' .here the servants used to eat .hen he heard 1ap converse .ith his
'istress8 but this correction is unavailin2, since it .as plainly induced by t.o hi2hly leadin2
4uestions fro' contestant:s counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant .ith this .itness: "> years of service to the
deceased.
Apon the other hand, the discrepancies in the testi'ony of the instru'ental .itnesses ur2ed
upon us by the contestant-appellant, concernin2 the presence or absence of Aurelio Montinola
at the si2nin2 of the testa'ent or of the codicil, and the identity of the person .ho inserted the
date therein, are not 'aterial and are lar2ely i'a2inary, since the .itness Mrs. /abiana
confessed inability to re'e'ber all the details of the transaction. Neither are .e i'pressed by
the ar2u'ent that the use of so'e =panish ter's in the codicil and testa'ent 6li)elegado,
partes iguales, plena propiedad7 is proof that its contents .ere not understood by the testatri*, it
appearin2 in evidence that those ter's are of co''on use even in the vernacular, and that the
deceased .as a .o'an of .ide business interests.
/he 'ost i'portant variation noted by the contestants concerns that si2nin2 of the certificate of
ac)no.led2'ent 6in =panish7 appended to the Codicil in (isayan, E*hibit E. Anli)e the
testa'ent, this codicil .as e*ecuted after the enact'ent of the ne. Civil Code, and, therefore,
had to be ac)no.led2ed before a notary public 6Art. >-B7. No., the instru'ental .itnesses 6.ho
happen to be the sa'e ones .ho attested the .ill of "#$-7 asserted that after the codicil had
been si2ned by the testatri* and the .itnesses at the =an Pablo <ospital, the sa'e .as si2ned
and sealed by notary public 0i'otea on the sa'e occasion. 3n the other hand, 0i'otea
affir'ed that he did not do so, but brou2ht the codicil to his office, and si2ned and sealed it
there. /he variance does not necessarily i'ply conscious perversion of truth on the part of the
.itnesses, but appears rather due to a .ell-established pheno'enon, the tendency of the 'ind,
in recallin2 past events, to substitute the usual and habitual for .hat differs sli2htly fro' it 6&&
Moore on %acts, p. >C>8 /he Ellen Mc0overn, C %ed. >B>, >C-7.
At any rate, as observed by the Court belo., .hether or not the notary si2ned the certification of
ac)no.led2'ent in the presence of the testatri* and the .itnesses, does not affect the validity
of the codicil. Anli)e the Code of ">># 6Art. B##7, the ne. Civil Code does not re4uire that the
si2nin2 of the testator, .itnesses and notary should be acco'plished in one sin2le act. A
co'parison of Articles >-$ and >-B of the ne. Civil Code reveals that .hile testator and
.itnesses si2n in the presence of each other, all that is thereafter re4uired is that 9every .ill
'ust be ac)no.led2ed before a notary public by the testator and the .itnesses9 6Art. >-B78 i.e.,
that the latter should avo. to the certifyin2 officer the authenticity of their si2natures and the
voluntariness of their actions in e*ecutin2 the testa'entary disposition. /his .as done in the
case before us. /he subse4uent si2nin2 and sealin2 by the notary of his certification that the
testa'ent .as duly ac)no.led2ed by the participants therein is no part of the ac)no.led2'ent
itself nor of the testa'entary act. <ence their separate e*ecution out of the presence of the
testatri* and her .itnesses can not be said to violate the rule that testa'ents should be
co'pleted .ithout interruption 6Andalis vs. Pul2ueras, $# Phil. B?!7, or, as the Ro'an 'a*i'
puts it, "uno codem die ac tempore in eadem loco", and no reversible error .as co''itted by
the Court in so holdin2. &t is note.orthy that Article >-B of the ne. Civil Code does not contain
.ords re4uirin2 that the testator and the .itnesses should ac)no.led2e the testa'ent on the
sa'e day or occasion that it .as e*ecuted.
/he decision ad'ittin2 the .ill to probate is affir'ed, .ith costs a2ainst appellant.
Republic of the Philippines
SUPREME COURT
Manila
T1IRD DIVISION
G.R. No. 123962 A3r%4 25, 2663
URSULINA GANUELAS, METO"IO GANUELAS ,'& ANTONIO
GANUELAS, petitioners,
vs.
ON. RO+ERT T. CA7E", !)&(e o* /.e Re(%o',4 Tr%,4 Co)r/ o* S,' 0er','&o,
L, U'%o' 8+r,'-. 299, LEOCA"IA G. 0LORES, 0ELICITACION G. AGTARAP,
CORAZON G. SIPALA1 ,'& ESTATE O0 ROMANA GANUELAS "E LA ROSA,
re3re$e'/e& b: GREGORIO "ELA ROSA, A&m%'%$/r,/or, respondents.
CARPIO MORALES, J.;
The present petition for revie under Rule E5 of the Rules of $ourt assails, on a
2uestion of la, the Februar0 >>, CBB6 decision C of the Re"ional Trial $ourt of San
Fernando, <a Inion, ;ranch >B, in $ivil $ase No. DBE=, an action for declaration of
nullit0 of a deed of donation.
The facts, as culled fro# the records of the case, are as follos?
On (pril CC, CB53, $elestina Ganuelas Vda. de Valin )$elestina- e+ecuted a Deed of
Donation of Real Propert0 > coverin" seven parcels of land in favor of her niece
Irsulina Ganuelas )Irsulina-, one of herein petitioners.
The pertinent provision of the deed of donation reads, 2uoted erbati!?
+++ +++ +++
That, for and in consideration of the love and aMection hich the DONOR has
for the DON**, and of the faithful services the latter has rendered in the past
to the for#er, the said DONOR does b0 these presents transfer and conve0,
b0 a0 of DON(TION, unto the DON** the propert0 above, described, to
beco#e eMective upon the death of the DONOR/ but in the event that the
DON** should die before the DONOR, the present donation shall be dee#ed
rescinded and of no further force and eMect.
+++ +++ +++.
D
On 9une C4, CB6=, $elestina e+ecuted a docu#ent deno#inated as Revocation of
Donation
E
purportin" to set aside the deed of donation. More than a #onth later or
on (u"ust C3, CB6=, $elestina died ithout issue and an0 survivin" ascendants and
siblin"s.
(fter $elestina@s death, Irsulina had been sharin" the produce of the donated
properties ith private respondents <eocadia G. Flores, et al., nieces of $elestina.
In CB3>, or tent0'four 0ears after the e+ecution of the Deed of Donation, Irsulina
secured the correspondin" ta+ declarations, in her na#e, over the donated
properties, to it? Ta+ Declarations Nos. C3C43, C3C4B, C3CC4, C3CCC, C3CC>,
C3CCD and C3CCE, and since then, she refused to "ive private respondents an0
share in the produce of the properties despite repeated de#ands.
Private respondents ere thus pro#pted to 7le on Ma0 >6, CB36 ith the RT$ of San
Fernando, <a Inion a co#plaint
5
a"ainst Irsulina, alon" ith Metodio Ganuelas and
(ntonio Ganuelas ho ere alle"ed to be unillin" plaintiMs. The co#plaint alle"ed
that the Deed of Donation e+ecuted b0 $elestina in favor of Irsulina as void for
lac8 of ac8noled"#ent b0 the attestin" itnesses thereto before notar0 public
(tt0. 1enr0 Val#onte, and the donation as a disposition !ortis causa hich failed
to co#pl0 ith the provisions of the $ivil $ode re"ardin" for#alities of ills and
testa#ents, hence, it as void. The plaintiMs'herein private respondents thus
pra0ed that !ud"#ent be rendered orderin" Irsulina to return to the# as intestate
heirs the possession and onership of the properties. The0 li8eise pra0ed for the
cancellation of the ta+ declarations secured in the na#e of Irsulina, the partition of
the properties a#on" the intestate heirs of $elestina, and the renderin" b0 Irsulina
of an accountin" of all the fruits of the properties since CB3> and for her to return or
pa0 the value of their shares.
The defendants'herein petitioners alle"ed in their (nser
6
that the donation in favor
of Irsulina as inter ios as conte#plated under (rticle =>B of the $ivil
$ode,
=
hence, the deed did not have to co#pl0 ith the re2uire#ents for the
e+ecution of a valid ill/ the Revocation of Donation is null and void as the "round
#entioned therein is not a#on" those provided b0 la to be the basis thereof/ and
at an0 rate, the revocation could onl0 be le"all0 enforced upon 7lin" of the
appropriate co#plaint in court ithin the prescriptive period provided b0 la, hich
period had, at the ti#e the co#plaint as 7led, alread0 lapsed.
;0 Decision of Februar0 >>, CBB6, the trial court, holdin" that the provision in the
Deed of Donation that in the event that the DON** should predecease the DONOR,
the ,donation shall be dee#ed rescinded and of no further force and eMect, is an
e+plicit indication that the deed is a donation #ortis causa,
3
found for the plaintiMs'
herein private respondents, thus?
A1*R*FOR* the $ourt renders !ud"#ent declarin" null and void the Deed of
Donation of Real Propert0 e+ecuted b0 $elestina Ganuelas, and orders the
partition of the estate of $elestina a#on" the intestate heirs.
SO ORD*R*D.
B
The trial court also held that the absence of a reservation clause in the deed i#plied
that $elestina retained co#plete do#inion over her properties, thus supportin" the
conclusion that the donation is !ortis causa,
C4
and that hile the deed contained an
attestation clause and an ac8noled"#ent shoin" the intent of the donor to eMect
a post#orte# disposition, the ac8noled"#ent as defective as onl0 the donor and
donee appear to have ac8noled"ed the deed before the notar0 public, thereb0
renderin" the entire docu#ent void.
CC
<astl0, the trial court held that the subse2uent e+ecution b0 $elestina of the
Revocation of Donation shoed that the donor intended the revocabilit0 of the
donation ad nutu!, thus sustainin" its 7ndin" that the conve0ance as !ortis
causa.
C>
On herein petitioners@ ar"u#ent that the Revocation of Donation as void as the
"round #entioned therein is not one of those alloed b0 la to be a basis for
revocation, the trial court held that the le"al "rounds for such revocation as
provided under the $ivil $ode arise onl0 in cases of donations inter ios, but not in
donations!ortis causa hich are revocable at ill durin" the lifeti#e of the donor.
The trial court held, in an0 event, that "iven the nullit0 of the disposition !ortis
causa in vie of a failure to co#pl0 ith the for#alities re2uired therefor, the Deed
of Revocation as a super.uit0.
CD
1ence, the instant petition for revie, petitioners contendin" that the trial court
erred?
I. . . . A1*N IT D*$<(R*D NI<< (ND VOID T1* DON(TION *N*$IT*D ;H
$*<*STIN( G(NI*<(S/
II. . . . A1*N IT IP1*<D T1* R*VO$(TION OF DON(TION/
III. . . . IN R*ND*RING ITS D*$ISION (DV*RS* TO P*TITION*R IRSI<IN(
G(NI*<(S.
CE
Petitioners ar"ue that the donation contained in the deed is inter ios as the #ain
consideration for its e+ecution as the donor@s aMection for the donee rather than
the donor@s death/
C5
that the provision on the eMectivit0 of the donation O after the
donor@s death O si#pl0 #eant that absolute onership ould pertain to the donee
on the donor@s death/
C6
and that since the donation is inter ios, it #a0 be revo8ed
onl0 for the reasons provided in (rticles =64,
C=
=6E
C3
and =65
CB
of the $ivil $ode.
In a letter of March C6, CBB3,
>4
private respondent $ora&on Sipala0, reactin" to this
$ourt@s 9anuar0 >3, CBB3 Resolution re2uirin" private respondents ,to S1OA $(IS*
h0 the0 should not be disciplinaril0 dealt ith or held in conte#pt, for failure to
sub#it the na#e and address of their ne counsel, e+plains that the0 are no lon"er
interested in pursuin" the case and are ,illin" and read0 to aive hatever ri"hts,
the0 have over the properties sub!ect of the donation. Petitioners, ho ere
re2uired to co##ent on the letter, b0 $o##ent of October >3, CBB3,
>C
elco#e
private respondents@ "esture but pra0 that ,for the sa8e of enrichin" !urisprudence,
their KpLetition be "iven due course and resolved.,
The issue is thus hether the donation is inter ios or !ortis causa.
$rucial in the resolution of the issue is the deter#ination of hether the donor
intended to transfer the onership over the properties upon the e+ecution of the
deed.
>>
Donation inter ios diMers fro# donation !ortis causa in that in the for#er, the act
is i##ediatel0 operative even if the actual e+ecution #a0 be deferred until the
death of the donor, hile in the latter, nothin" is conve0ed to or ac2uired b0 the
donee until the death of the donor'testator.
>D
The folloin" rulin" of this $ourt
in "le#andro . Geraldez is illu#inatin"?
>E
If the donation is #ade in conte#plation of the donor@s death, #eanin" that
the full or na8ed onership of the donated properties ill pass to the donee
onl0 because of the donor@s death, then it is at that ti#e that the donation
ta8es eMect, and it is a donation !ortis causa hich should be e#bodied in a
last ill and testa#ent.
;ut if the donation ta8es eMect durin" the donor@s lifeti#e or independentl0
of the donor@s death, #eanin" that the full or na8ed onership )nuda
proprietas- of the donated properties passes to the donee durin" the donor@s
lifeti#e, not b0 reason of his death but because of the deed of donation, then
the donation is inter ios.
The distinction beteen a transfer inter ios and !ortis causa is i#portant as the
validit0 or revocation of the donation depends upon its nature. If the donation
is inter ios, it #ust be e+ecuted and accepted ith the for#alities prescribed b0
(rticles =E3
>5
and =EB
>6
of the $ivil $ode, e+cept hen it is onerous in hich case
the rules on contracts ill appl0. If it is !ortis causa, the donation #ust be in the
for# of a ill, ith all the for#alities for the validit0 of ills, otherise it is void and
cannot transfer onership.
>=
The distin"uishin" characteristics of a donation !ortis causa are the folloin"?
C. It conve0s no title or onership to the transferee before the death of the
transferor/ or, hat a#ounts to the sa#e thin", that the transferor should
retain the onership )full or na8ed- and control of the propert0 hile alive/
>. That before his death, the transfer should be revocable b0 the transferor at
ill, ad nutu!/ but revocabilit0 #a0 be provided for indirectl0 b0 #eans of a
reserved poer in the donor to dispose of the properties conve0ed/
D. That the transfer should be void if the transferor should survive the
transferee.
>3
In the donation sub!ect of the present case, there is nothin" therein hich indicates
that an0 ri"ht, title or interest in the donated properties as to be transferred to
Irsulina prior to the death of $elestina.
The phrase ,to beco#e eMective upon the death of the DONOR, ad#its of no other
interpretation but that $elestina intended to transfer the onership of the
properties to Irsulina on her death, not durin" her lifeti#e.
>B
More i#portantl0, the provision in the deed statin" that if the donee should die
before the donor, the donation shall be dee#ed rescinded and of no further force
and eMect shos that the donation is a post#orte# disposition.
(s stated in a lon" line of cases, one of the decisive characteristics of a
donation !ortis causa is that the transfer should be considered void if the donor
should survive the donee.
D4
More. The deed contains an attestation clause e+pressl0 con7r#in" the donation
as !ortis causa?
SIGN*D b0 the above'na#ed donor, $elestina Ganuelas, at the foot of this
deed of donation !ortis causa, consistin" of to )>- pa"es and on the left
#ar"in of each and ever0 pa"e thereof in the !oint presence of all of us ho
at her re2uest and in her presence and that of each other have in li8e #anner
subscribed our na#es as itnesses.
DC
)*#phasis supplied-
To classif0 the donation as inter vivos si#pl0 because it is founded on
considerations of love and aMection is erroneous. That the donation as pro#pted
b0 the aMection of the donor for the donee and the services rendered b0 the latter is
of no particular si"ni7cance in deter#inin" hether the deed constitutes a
transfer inter ios or not, because a le"ac0 #a0 have an identical #otivation.
D>
In
other ords, love and aMection #a0 also underline transfers !ortis causa.
DD
In Maglasang . $eirs of %abatingan,
DE
the deeds of donation contained provisions
al#ost identical to those found in the deed sub!ect of the present case?
That for and in consideration of the love and aMection of the DONOR for the
DON**, + + +. the DONOR does hereb0, b0 these presents, transfer, conve0,
b0 a0 of donation, unto the DON** the above'described propert0, to"ether
ith the buildin"s and all i#prove#ents e+istin" thereon, to beco!e
e&ectie upon the death of the DO'O(/ PROVID*D, 1OA*V*R, that in the
eent that the DO')) should die before the DO'O(* the present donation
shall be dee!ed auto!atically rescinded and of no further force and e&ect.
)*#phasis supplied-
In that case, this $ourt held that the donations ere !ortis causa, for the above'
2uoted provision conclusivel0 establishes the donor@s intention to transfer the
onership and possession of the donated propert0 to the donee onl0 after the
for#er@s death. <i8e in the present case, the deeds therein did not contain an0 clear
provision that purports to pass proprietar0 ri"hts to the donee prior to the donor@s
death.
(s the sub!ect deed then is in the nature of a #ortis causa disposition, the
for#alities of a ill under (rticle =>3 of the $ivil $ode should have been co#plied
ith, failin" hich the donation is void and produces no eMect.
D5
(s noted b0 the trial court, the attestin" itnesses failed to ac8noled"e the deed
before the notar0 public, thus violatin" (rticle 346 of the $ivil $ode hich provides?
(rt. 346. *ver0 ill #ust be ac8noled"ed before a notar0 public b0 the
testator and the witnesses. The notar0 public shall not be re2uired to retain a
cop0 of the ill, or 7le another ith the oJce of the $ler8 of $ourt. )*#phasis
supplied-
The trial court did not thus co##it an0 reversible error in declarin" the Deed of
Donation to be !ortis causa.
A1*R*FOR*, the petition is hereb0 D*NI*D for lac8 of #erit.
SO ORD*R*D.
Re3)b4%- o* /.e P.%4%33%'e$
S)3reme Co)r/
M,'%4,


TIR" "I#ISION


MANUEL A. ECA#EZ,
Petitioner,


' versus '


"OZEN CONSTRUCTION AN"
"E#ELOPMENT CORPORATION ,'&
TE REGISTER O0 "EE"S O0 CE+U
CIT1,
Respondents.
G.R. No. 192916

Present?

$(RPIO MOR(<*S* +.* %hairperson*
;RION,
;*RS(MIN,
VI<<(R(M(, 9R., and
S*R*NO, ++.

Pro#ul"ated?

October CC, >4C4
<----------------------------------------------------------------------------------------<

R E S O L U T I O N


+RION, J.;

Vicente *chave& ),icente- as the absolute oner of several lots in $ebu
$it0, hich includes <ot No. CB56'( and <ot No. CB5B )sub#ect lots-. On Septe#ber
=, CB35, Vicente donated the sub!ect lots to petitioner Manuel *chave& )Manuel-
throu"h a Deed of Donation Mortis %ausa.
KCL
Manuel accepted the donation.

In March CB36, Vicente e+ecuted a $ontract to Sell over the sa#e lots in favor
of Do&en $onstruction and Develop#ent $orporation )Dozen %orporation-. In
October CB36, the0 e+ecuted to Deeds of (bsolute Sale over the sa#e properties
covered b0 the previous $ontract to Sell.

On Nove#ber 6, CB36, Vicente died. *#iliano $abani", VicentePs nephe,
7led a petition for the settle#ent of VicentePs intestate estate. On the other hand,
Manuel 7led a3e/%/%o' /o ,33rove #%-e'/e=$ &o',/%o' mortis causa in his favor
and an ,-/%o' /o ,'')4 /.e -o'/r,-/$ o* $,4e Vicente e+ecuted in favor of Do&en
$orporation. These cases ere !ointl0 heard.

T.e Re(%o',4 Tr%,4 Co)r/ 8RTC9 &%$m%$$e& M,')e4=$ 3e/%/%o' /o
,33rove /.e &o',/%o' ,'& .%$ ,-/%o' *or ,'')4me'/ o* /.e -o'/r,-/$ o*
$,4e.
K>L
The RT$ found that the e+ecution of a $ontract to Sell in favor of Do&en
$orporation, after Vicente had donated the lots to Manuel, as an e2uivocal act that
revo8ed the donation. The $ourt of (ppeals )%"- aJr#ed the RT$Ps decision.
KDL
The
$( held that since the donation in favor of Manuel as a donation !ortis causa,
co#pliance ith the for#alities for the validit0 of ills should have been
observed. T.e CA *o)'& /.,/ /.e &ee& o* &o',/%o' &%& 'o/ -o'/,%' ,'
,//e$/,/%o' -4,)$e ,'& >,$ /.ere*ore vo%&.

T.e Pe/%/%o' *or Rev%e> o' Certiorari

Manuel clai#s that the $( should have applied the rule on substantial
co#pliance in the construction of a ill to VicentePs donation !ortis causa. 1e
insists that the strict construction of a ill as not arranted in the absence of an0
indication of bad faith, fraud, or substitution in the e+ecution of the Deed of
Donation Mortis %ausa. 1e ar"ues that the $( i"nored the (c8noled"#ent portion
of the deed of donation, hich contains the Qi#port and purposeR of the attestation
clause re2uired in the e+ecution of ills. The (c8noled"#ent reads?
;*FOR* M*, Notar0 Public, this =
th
da0 of Septe#ber CB35 at
Talisa0, $ebu, personall0 appeared VI$*NT* S. *chave& ith Res. $ert.
No. C63664BE issued on (pril C4, CB35 at KsicL Talisa0, $ebu 8non to
#e to be the sa#e person ho e+ecuted the fore"oin" instru#ent of
Deed of Donartion Mortis $ausa before the Notar0 Public and in the
presence of the fore"oin" three )D- itnesses ho si"ned this
instru#ent before and in the presence of each other and of the Notar0
Public and all of the# ac8noled"e to #e that the sa#e is their
voluntar0 act and deed. K*#phasis in the ori"inal.L

TE COURT=S RULING

The $( correctl0 declared that a donation !ortis causa #ust co#pl0 ith the
for#alities prescribed b0 la for the validit0 of ills,
KEL
Qotherise, the donation is
void and ould produce no eMect.R
K5L
(rticles 345 and 346 of the $ivil $ode should
have been applied.

(s the $( correctl0 found, the purported attestation clause e#bodied in the
(c8noled"#ent portion does not contain the nu#ber of pa"es on hich the deed
as ritten. The e+ception to this rule in Singson . -lorentino
K6L
and .aboada .
$on. (osal*
K=L
cannot be applied to the present case, as the facts of this case are
not si#ilar ith those ofSingson and .aboada. In those cases, the $ourt found that
althou"h the attestation clause failed to state the nu#ber of pa"es upon hich the
ill as ritten, the nu#ber of pa"es as stated in one portion of the ill. This is
not the factual situation in the present case.

*ven "rantin" that the (c8noled"#ent e#bodies hat the attestation
clause re2uires, e are not prepared to hold that an attestation clause and an
ac8noled"#ent can be #er"ed in one state#ent.
That the re2uire#ents of attestation and ac8noled"#ent are e#bodied in to
separate provisions of the $ivil $ode )(rticles 345 and 346, respectivel0- indicates
that the la conte#plates to distinct acts that serve diMerent purposes. (n
ac8noled"#ent is #ade b0 one e+ecutin" a deed, declarin" before a co#petent
oJcer or court that the deed or act is his on. On the other hand, the attestation of
a ill refers to the act of the instru#ental itnesses the#selves ho certif0 to the
e+ecution of the instru#ent before the# and to the #anner of its e+ecution.
K3L


(lthou"h the itnesses in the present case ac8noled"ed the e+ecution of
the Deed of Donation Mortis %ausa before the notar0 public, this is not the avoal
the la re2uires fro# the instru#ental itnesses to the e+ecution of a decedentPs
ill. (n attestation #ust state all the details the third para"raph of (rticle 345
re2uires. In the absence of the re2uired avoal b0 the itnesses the#selves, no
attestation clause can be dee#ed e#bodied in the (c8noled"e#ent of the Deed
of Donation Mortis %ausa.

Findin" no reversible error co##itted b0 the $(, the $ourt
hereb0 "ENIES ManuelPs petition for revie on certiorari.

SO OR"ERE".
0IRST "I#ISION

MANUEL L. LEE, (.$. No. 5>3C
Com34,%','/,
Present?
PINO, %.+., %hairperson,
S(NDOV(<'GITI*RR*%,
- v e r $ ) $ - $ORON(, (%$IN( and
<*ON(RDO'D* $(STRO, ++.

ATT1. REGINO +. TAM+AGO,
Re$3o'&e'/. Pro#ul"ated?
Februar0 C>, >443
< - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -<

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

In a letter'co#plaint dated (pril C4, >444, co#plainant Manuel <. <ee char"ed
respondent (tt0. Re"ino ;. Ta#ba"o ith violation of the Notarial <a and the ethics
of the le"al profession for notari&in" a spurious last ill and testa#ent.

In his co#plaint, co#plainant averred that his father, the decedent Vicente
<ee, Sr., never e+ecuted the contested ill. Further#ore, the spurious ill contained
the for"ed si"natures of $a0etano No0na0 and <oreto Gra!o, the purported
itnesses to its e+ecution.

In the said ill, the decedent supposedl0 be2ueathed his entire estate to his
ife <i# 1oc8 <ee, save for a parcel of land hich he devised to Vicente <ee, 9r. and
*lena <ee, half'siblin"s of co#plainant.

The ill as purportedl0 e+ecuted and ac8noled"ed before respondent on
9une D4, CB65.
KCL
$o#plainant, hoever, pointed out that the residence
certi7cate
K>L
of the testator noted in the ac8noled"#ent of the ill as dated
9anuar0 5, CB6>.
KDL
Further#ore, the si"nature of the testator as not the sa#e as
his si"nature as donor in a deed of donation
KEL
)containin" his purported "enuine
si"nature-. $o#plainant averred that the si"natures of his deceased father in the
ill and in the deed of donation ere Qin an0 a0 )sic- entirel0 and dia#etricall0
opposed fro# )sic- one another in all an"leKsL.R
K5L

$o#plainant also 2uestioned the absence of notation of the residence
certi7cates of the purported itnesses No0na0 and Gra!o. 1e alle"ed that their
si"natures had li8eise been for"ed and #erel0 copied fro# their respective votersP
aJdavits.

$o#plainant further asserted that no cop0 of such purported ill as on 7le
in the archives division of the Records Mana"e#ent and (rchives OJce of the
National $o##ission for $ulture and the (rts )N$$(-. In this connection, the
certi7cation of the chief of the archives division dated Septe#ber CB, CBBB stated?

Doc. CE, Pa"e No. E, ;oo8 No. C, Series of CB65 refers to an (FFID(VIT
e+ecuted b0 ;(RTO<OM* R(MIR*% on 9une D4, CB65 and is available in
this OJceKPsL 7les.
K6L


Respondent in his co##ent dated 9ul0 6, >44C clai#ed that the co#plaint
a"ainst hi# contained false alle"ations? )C- that co#plainant as a son of the
decedent Vicente <ee, Sr. and )>- that the ill in 2uestion as fa8e and spurious. 1e
alle"ed that co#plainant as Qnot a le"iti#ate son of Vicente <ee, Sr. and the last
ill and testa#ent as validl0 e+ecuted and actuall0 notari&ed b0 respondent per
aJdavit
K=L
of Gloria Nebato, co##on'la ife of Vicente <ee, Sr. and corroborated
b0 the !oint aJdavit
K3L
of the children of Vicente <ee, Sr., na#el0 *lena N. <ee and
Vicente N. <ee, 9r. +++.R
KBL

Respondent further stated that the co#plaint as 7led si#pl0 to harass hi#
because the cri#inal case 7led b0 co#plainant a"ainst hi# in the OJce of the
O#buds#an Qdid not prosper.R

Respondent did not dispute co#plainantPs contention that no cop0 of the ill
as on 7le in the archives division of the N$$(. 1e clai#ed that no cop0 of the
contested ill could be found there because none as 7led.

<astl0, respondent pointed out that co#plainant had no valid cause of action
a"ainst hi# as he )co#plainant- did not 7rst 7le an action for the declaration of
nullit0 of the ill and de#and his share in the inheritance.

In a resolution dated October C=, >44C, the $ourt referred the case to the
Inte"rated ;ar of the Philippines )I;P- for investi"ation, report and reco##endation.
KC4L

In his report, the investi"atin" co##issioner found respondent "uilt0 of
violation of pertinent provisions of the old Notarial <a as found in the Revised
(d#inistrative $ode. The violation constituted an infrin"e#ent of le"al ethics,
particularl0 $anon C
KCCL
and Rule C.4C
KC>L
of the $ode of Professional Responsibilit0
)$PR-.
KCDL
Thus, the investi"atin" co##issioner of the I;P $o##ission on ;ar
Discipline reco##ended the suspension of respondent for a period of three #onths.

The I;P ;oard of Governors, in its Resolution No. NVII'>446'>35 dated Ma0
>6, >446, resolved?

KTLo (DOPT and (PPROV*, as it is hereb0 (DOPT*D and
(PPROV*D, >%/. mo&%?-,/%o', the Report and Reco##endation of
the Investi"atin" $o##issioner of the above'entitled case, herein
#ade part of this Resolution as (nne+ Q(R/ and, 7ndin" the
reco##endation full0 supported b0 the evidence on record and the
applicable las and rules, and considerin" RespondentPs failure to
co#pl0 ith the las in the dischar"e of his function as a notar0
public, (tt0. Re"ino ;. Ta#ba"o is hereb0 suspended fro# the practice
of la for one 0ear and RespondentPs notarial co##ission is Revo@e&
,'& "%$A),4%?e& fro# reappoint#ent as Notar0 Public for to )>-
0ears.
KCEL


Ae aJr# ith #odi7cation.

( ill is an act hereb0 a person is per#itted, ith the for#alities prescribed
b0 la, to control to a certain de"ree the disposition of his estate, to ta8e eMect
after his death.
KC5L
( ill #a0 either be notarial or holo"raphic.

The la provides for certain for#alities that #ust be folloed in the
e+ecution of ills. The ob!ect of sole#nities surroundin" the e+ecution of ills is to
close the door on bad faith and fraud, to avoid substitution of ills and testa#ents
and to "uarantee their truth and authenticit0.
KC6L

( notarial ill, as the contested ill in this case, is re2uired b0 la to be
subscribed at the end thereof b0 the testator hi#self. In addition, it should be
attested and subscribed b0 three or #ore credible itnesses in the presence of the
testator and of one another.
KC=L

The ill in 2uestion as attested b0 onl0 to itnesses, No0na0 and Gra!o.
On this circu#stance alone, the ill #ust be considered void.
KC3L
This is in
consonance ith the rule that acts e+ecuted a"ainst the provisions of #andator0 or
prohibitor0 las shall be void, e+cept hen the la itself authori&es their validit0.

The $ivil $ode li8eise re2uires that a ill #ust be ac8noled"ed before a
notar0 public b0 the testator and the itnesses.
KCBL
The i#portance of this
re2uire#ent is hi"hli"hted b0 the fact that it as se"re"ated fro# the other
re2uire#ents under (rticle 345 and e#bodied in a distinct and separate provision.
K>4L

(n ac8noled"#ent is the act of one ho has e+ecuted a deed in "oin"
before so#e co#petent oJcer or court and declarin" it to be his act or deed. It
involves an e+tra step underta8en hereb0 the si"nator0 actuall0 declares to the
notar0 public that the sa#e is his or her on free act and deed.
K>CL
The
ac8noled"#ent in a notarial ill has a to'fold purpose? )C- to safe"uard the
testatorPs ishes lon" after his de#ise and )>- to assure that his estate is
ad#inistered in the #anner that he intends it to be done.

( cursor0 e+a#ination of the ac8noled"#ent of the ill in 2uestion shos
that this particular re2uire#ent as neither strictl0 nor substantiall0 co#plied ith.
For one, there as the conspicuous absence of a notation of the residence
certi7cates of the notarial itnesses No0na0 and Gra!o in the ac8noled"#ent.
Si#ilarl0, the notation of the testatorPs old residence certi7cate in the sa#e
ac8noled"#ent as a clear breach of the la. These o#issions b0 respondent
invalidated the ill.

(s the ac8noled"in" oJcer of the contested ill, respondent as re2uired
to faithfull0 observe the for#alities of a ill and those of notari&ation. (s e held
in Santiago . (afanan?
K>>L

The Notarial <a is e+plicit on the obli"ations and duties of
notaries public. The0 are re2uired to certif0 that the part0 to ever0
docu#ent ac8noled"ed before hi# had presented the proper
residence certi7cate )or e+e#ption fro# the residence ta+-/ and to
enter its nu#ber, place of issue and date as part of such certi7cation.


These for#alities are #andator0 and cannot be disre"arded, considerin" the
de"ree of i#portance and evidentiar0 ei"ht attached to notari&ed docu#ents.
K>DL
(
notar0 public, especiall0 a la0er,
K>EL
is bound to strictl0 observe these ele#entar0
re2uire#ents.

The Notarial <a then in force re2uired the e+hibition of the residence
certi7cate upon notari&ation of a docu#ent or instru#ent?

Section >5C. Re2uire#ent as to notation of pa0#ent of KcedulaL
residence ta+. S *ver0 contract, deed, or other docu#ent
ac8noled"ed before a notar0 public shall have certi7ed thereon that
the parties thereto have presented their proper KcedulaL residence
certi7cate or are e+e#pt fro# the KcedulaL residence ta+, and there
shall be entered b0 the notar0 public as a part of such certi7cate the
nu#ber, place of issue, and date of each KcedulaL residence certi7cate
as aforesaid.
K>5L


The i#portance of such act as further reiterated b0 Section 6 of the
Residence Ta+ (ct
K>6L
hich stated?

Ahen a person liable to the ta+es prescribed in this (ct ac8noled"es
an0 docu#ent before a notar0 public +++ it shall be the dut0 of such
person +++ ith ho# such transaction is had or business done, to
re2uire the e+hibition of the residence certi7cate shoin" pa0#ent of
the residence ta+es b0 such person +++.


In the issuance of a residence certi7cate, the la see8s to establish the true
and correct identit0 of the person to ho# it is issued, as ell as the pa0#ent of
residence ta+es for the current 0ear. ;0 havin" alloed decedent to e+hibit an
e+pired residence certi7cate, respondent failed to co#pl0 ith the re2uire#ents of
both the old Notarial <a and the Residence Ta+ (ct. (s #uch could be said of his
failure to de#and the e+hibition of the residence certi7cates of No0na0 and Gra!o.


On the issue of hether respondent as under the le"al obli"ation to furnish
a cop0 of the notari&ed ill to the archives division, (rticle 346 provides?

(rt. 346. *ver0 ill #ust be ac8noled"ed before a notar0
public b0 the testator and the itness. T.e 'o/,r: 3)b4%- $.,44 'o/
be reA)%re& /o re/,%' , -o3: o* /.e >%44, or ?4e ,'o/.er >%/. /.e
oB-e o* /.e C4er@ o* Co)r/. )e#phasis supplied-

RespondentPs failure, inadvertent or not, to 7le in the archives division a cop0 of the
notari&ed ill as therefore not a cause for disciplinar0 action.

Nevertheless, respondent should be faulted for havin" failed to #a8e the
necessar0 entries pertainin" to the ill in his notarial re"ister. The old Notarial <a
re2uired the entr0 of the folloin" #atters in the notarial re"ister, in chronolo"ical
order?

C. nature of each instru#ent e+ecuted, sorn to, or ac8noled"ed
before hi#/
>. person e+ecutin", searin" to, or ac8noled"in" the instru#ent/
D. itnesses, if an0, to the si"nature/
E. date of e+ecution, oath, or ac8noled"#ent of the instru#ent/
5. fees collected b0 hi# for his services as notar0/
6. "ive each entr0 a consecutive nu#ber/ and
=. if the instru#ent is a contract, a brief description of the
substance of the instru#ent.
K>=L


In an eMort to prove that he had co#plied ith the above#entioned rule,
respondent contended that he had crossed out a prior entr0 and entered instead the
ill of the decedent. (s proof, he presented a photocop0 of his notarial re"ister. To
reinforce his clai#, he presented a photocop0 of a certi7cation
K>3L
statin" that the
archives division had no cop0 of the aJdavit of ;artolo#e Ra#ire&.

( photocop0 is a #ere secondar0 evidence. It is not ad#issible unless it is
shon that the ori"inal is unavailable. The proponent #ust 7rst prove the e+istence
and cause of the unavailabilit0 of the ori"inal,
K>BL
otherise, the evidence presented
ill not be ad#itted. Thus, the photocop0 of respondentPs notarial re"ister as not
ad#issible as evidence of the entr0 of the e+ecution of the ill because it failed to
co#pl0 ith the re2uire#ents for the ad#issibilit0 of secondar0 evidence.

In the sa#e vein, respondentPs atte#pt to controvert the certi7cation dated
Septe#ber >C, CBBB
KD4L
#ust fail. Not onl0 did he present a #ere photocop0 of the
certi7cation dated March C5, >444/
KDCL
its contents did not s2uarel0 prove the fact of
entr0 of the contested ill in his notarial re"ister.

Notaries public #ust observe ith ut#ost care
KD>L
and ut#ost 7delit0 the
basic re2uire#ents in the perfor#ance of their duties, otherise, the con7dence of
the public in the inte"rit0 of notari&ed deeds ill be under#ined.
KDDL

Defects in the observance of the sole#nities prescribed b0 la render the
entire ill invalid. This carelessness cannot be ta8en li"htl0 in vie of the
i#portance and delicate nature of a ill, considerin" that the testator and the
itnesses, as in this case, are no lon"er alive to identif0 the instru#ent and to
con7r# its contents.
KDEL
(ccordin"l0, respondent #ust be held accountable for his
acts. The validit0 of the ill as seriousl0 co#pro#ised as a conse2uence of his
breach of dut0.
KD5L

In this connection, Section >EB of the old Notarial <a provided?

Grounds for revocation of co##ission. O The folloin" derelictions of
dut0 on the part of a notar0 public shall, in the discretion of the proper
!ud"e of 7rst instance, be suJcient "round for the revocation of his
co##ission?

+++ +++ +++

)b- The failure of the notar0 to #a8e the proper entr0 or entries in
his notarial re"ister touchin" his notarial acts in the #anner
re2uired b0 la.

+++ +++ +++


)f- The failure of the notar0 to #a8e the proper notation re"ardin"
cedula certi7cates.
KD6L


These "ross violations of the la also #ade respondent liable for violation of
his oath as a la0er and constituted trans"ressions of Section >4 )a-, Rule CD3 of
the Rules of $ourt
KD=L
and $anon C
KD3L
and Rule C.4C
KDBL
of the $PR.


The 7rst and fore#ost dut0 of a la0er is to #aintain alle"iance to the
Republic of the Philippines, uphold the $onstitution and obe0 the las of the land.
KE4L
For a la0er is the servant of the la and belon"s to a profession to hich
societ0 has entrusted the ad#inistration of la and the dispensation of !ustice.
KECL

Ahile the dut0 to uphold the $onstitution and obe0 the la is an obli"ation
i#posed on ever0 citi&en, a la0er assu#es responsibilities ell be0ond the basic
re2uire#ents of "ood citi&enship. (s a servant of the la, a la0er should #oreover
#a8e hi#self an e+a#ple for others to e#ulate.
KE>L
;ein" a la0er, he is supposed
to be a #odel in the co##unit0 in so far as respect for the la is concerned.
KEDL

The practice of la is a privile"e burdened ith conditions.
KEEL
( breach of
these conditions !usti7es disciplinar0 action a"ainst the errin" la0er. ( disciplinar0
sanction is i#posed on a la0er upon a 7ndin" or ac8noled"#ent that he has
en"a"ed in professional #isconduct.
KE5L
These sanctions #eted out to errant la0ers
include disbar#ent, suspension and repri#and.

Disbar#ent is the #ost severe for# of disciplinar0 sanction.
KE6L
Ae have held
in a nu#ber of cases that the poer to disbar #ust be e+ercised ith "reat
caution
KE=L
and should not be decreed if an0 punish#ent less severe S such as
repri#and, suspension, or 7ne S ill acco#plish the end desired.
KE3L
The rule then is
that disbar#ent is #eted out onl0 in clear cases of #isconduct that seriousl0 aMect
the standin" and character of the la0er as an oJcer of the court.
KEBL

Respondent, as notar0 public, evidentl0 failed in the perfor#ance of the
ele#entar0 duties of his oJce. $ontrar0 to his clai#s that he Qe+ercised his duties
as Notar0 Public ith due care and ith due re"ard to the provision of e+istin" la
and had co#plied ith the ele#entar0 for#alities in the perfor#ance of his duties
+++,R e 7nd that he acted ver0 irresponsibl0 in notari&in" the ill in 2uestion. Such
rec8lessness arrants the less severe punish#ent of suspension fro# the practice
of la. It is, as ell, a suJcient basis for the revocation of his co##ission
K54L
and
his perpetual dis2uali7cation to be co##issioned as a notar0 public.
K5CL


7ERE0ORE, respondent (tt0. Re"ino ;. Ta#ba"o is hereb0 found "uilt0 of
professional #isconduct. 1e violated )C- the <a0erPs Oath/ )>- Rule CD3 of the
Rules of $ourt/ )D- $anon C and Rule C.4C of the $ode of Professional Responsibilit0/
)E- (rt. 346 of the $ivil $ode and )5- the provisions of the old Notarial <a.

(tt0. Re"ino ;. Ta#ba"o is hereb0 SUSPEN"E" fro# the practice of la for
one 0ear and his notarial co##ission RE#OCE". ;ecause he has not lived up to
the trustorthiness e+pected of hi# as a notar0 public and as an oJcer of the
court, he is PERPETUALL1 "ISDUALI0IE" fro# reappoint#ent as a notar0 public.

<et copies of this Resolution be furnished to all the courts of the land, the
Inte"rated ;ar of the Philippines and the OJce of the ;ar $on7dant, as ell as
#ade part of the personal records of respondent.

SO OR"ERE".
0IRST "I#ISION
G.R. No. 175155, A3r%4 17, 2667
+ELLA A. GUERRERO, PETITIONER,
VS.
RESURRECCION A. +IIS, RESPON"ENT.
" E C I S I O N
CORONA, !.;
The Scriptures tell the stor0 of the brothers 9acob and *sauKCL, siblin"s ho fou"ht
bitterl0 over the inheritance of their father Isaac@s estate. 9urisprudence is also
replete ith cases involvin" acri#onious con.icts beteen brothers and sisters over
successional ri"hts. This case is no e+ception.
On Februar0 CB, CBBE, Felisa Ta#io de ;uenaventura, #other of petitioner ;ella (.
Guerrero and respondent Resurreccion (. ;ihis, died at the Metropolitan 1ospital in
Tondo, Manila.
On Ma0 >E, CBBE, petitioner 7led a petition for the probate of the last ill and
testa#ent of the decedent in ;ranch B5K>L of the Re"ional Trial $ourt of Tue&on $it0
here the case as doc8eted as Sp. Proc. No. T'BE'>466C. The petition alle"ed the
folloin"? petitioner as na#ed as e+ecutri+ in the decedent@s ill and she as
le"all0 2uali7ed to act as such/ the decedent as
a citi&en of the Philippines at the ti#e of her death/ at the ti#e of the e+ecution of
the ill, the testatri+ as =B 0ears old, of sound and disposin" #ind, not actin"
under duress, fraud or undue in.uence and as capacitated to dispose of her estate
b0 ill.
Respondent opposed her elder sister@s petition on the folloin" "rounds? the ill
as not e+ecuted and attested as re2uired b0 la/ its attestation clause and
ac8noled"#ent did not co#pl0 ith the re2uire#ents of the la/ the si"nature of
the testatri+ as procured b0 fraud and petitioner and her children procured the ill
throu"h undue and i#proper pressure and in.uence.
In an order dated Nove#ber B, CBBE, the trial court appointed petitioner as special
ad#inistratri+ of the decedent@s estate. Respondent opposed petitioner@s
appoint#ent but subse2uentl0 ithdre her opposition. Petitioner too8 her oath as
te#porar0 special ad#inistratri+ and letters of special
ad#inistration ere issued to her.
On 9anuar0 C=, >444, after petitioner presented her evidence, respondent 7led a
de#urrer thereto alle"in" that petitioner@s evidence failed to establish that the
decedent@s ill co#plied ith (rticles 34E and 345 of the $ivil $ode.
In a resolution dated 9ul0 6, >44C, the trial court denied the probate of the ill rulin"
that (rticle 346 of the $ivil $ode as not co#plied ith because the ill as
,ac8noled"ed, b0 the testatri+ and the itnesses at the testatri+@s, residence at
No. E4 Uanlaon Street, Tue&on $it0 before (tt0. Macario O. Directo ho as a
co##issioned notar0 public for and in $aloocan $it0. The dispositive portion of the
resolution read?
A1*R*FOR*, in vie of the fore"oin", the $ourt 7nds, and so declares that it
cannot ad#it the last ill and testa#ent of the late Felisa Ta#io de
;uenaventura to probate for the reasons herein above discussed and also in
accordance ith (rticle 3DB Kof the $ivil $odeL hich provides that if the
for#alities re2uired b0 la have not been co#plied ith, the ill shall be
disalloed. In vie thereof, the $ourt shall henceforth proceed ith intestate
succession in re"ard to the estate of the deceased Felisa Ta#io de
;uenaventura in accordance ith (rticle B64 of the K$ivil $odeL, to it? ,(rt.
B64. <e"al or intestate succession ta8es place? )C- If a person dies ithout a
ill, or ith a void ill, or one hich has subse2uentl0 lost its validit0, +++.,
SO ORD*R*D.KDL
Petitioner elevated the case to the $ourt of (ppeals but the appellate court
dis#issed the appeal and aJr#ed the resolution of the trial court.KEL
Thus, this petition.K5L
Petitioner ad#its that the ill as ac8noled"ed b0 the testatri+ and the itnesses
at the testatri+@s residence in Tue&on $it0 before (tt0. Directo and that, at that ti#e,
(tt0. Directo as a co##issioned notar0 public for and in $aloocan $it0. She,
hoever, asserts that the fact that the notar0 public as actin" outside his
territorial !urisdiction did not aMect the validit0 of the
notarial ill.
Did the ill ,ac8noled"ed, b0 the testatri+ and the instru#ental itnesses before
a notar0 public actin" outside the place of his co##ission satisf0 the re2uire#ent
under (rticle 346 of the $ivil $odeV It did not. (rticle 346 of the $ivil $ode provides?
(RT. 346. *ver0 ill #ust be ac8noled"ed before a notar0 public b0 the
testator and the itnesses. The notar0 public shall not be re2uired to retain a
cop0 of the ill, or 7le another ith the oJce of the $ler8 of $ourt.
One of the for#alities re2uired b0 la in connection ith the e+ecution of a notarial
ill is that it #ust be ac8noled"ed before a notar0 public b0 the testator and the
itnesses.K6L This for#al re2uire#ent is one of the indispensable re2uisites for the
validit0 of a ill.K=L In other ords, a notarial ill that is not ac8noled"ed before a
notar0 public b0 the testator and the instru#ental itnesses is void and cannot be
accepted for probate.
(n ac8noled"#ent is the act of one ho has e+ecuted a deed in "oin" before
so#e co#petent oJcer and declarin" it to be his act or deed.K3L In the case of a
notarial ill, that co#petent oJcer is the notar0 public.
The ac8noled"#ent of a notarial ill coerces the testator and the instru#ental
itnesses to declare before an oJcer of the la, the notar0 public, that the0
e+ecuted and subscribed to the ill as their on free act or deed.KBL Such
declaration is under oath and under pain of per!ur0, thus pavin" the a0 for the
cri#inal prosecution of persons ho participate in the e+ecution of spurious ills, or
those e+ecuted ithout the free consent of the testator.KC4L It also provides a
further de"ree of assurance that the testator is of a certain #indset in #a8in" the
testa#entar0 dispositions to the persons instituted as heirs or desi"nated as
devisees or le"atees in the ill.KCCL
(c8noled"#ent can onl0 be #ade before a co#petent oJcer, that is, a la0er
dul0 co##issioned as a notar0 public.
In this connection, the relevant provisions of the Notarial <a provide?
S*$TION >D=. -or! of co!!ission for notary public. SThe appoint#ent of a
notar0 public shall be in ritin", si"ned b0 the !ud"e, and substantiall0 in the
folloin" for#?

GOV*RNM*NT OF T1*
R*PI;<I$ OF T1* P1I<IPPIN*S
PROVIN$* OF WWWWWWWWWWW
This is to certif0 that WWWWWWWWWWWW, of the #unicipalit0 of WWWWWWWW in said
province, as on the WWW da0 of WWWWWWWWWW, anno Do#ini nineteen hundred
and WWWWWWW, appointed b0 #e a notar0 public, >%/.%' ,'& *or /.e $,%&
3rov%'-e, for the ter# endin" on the 7rst da0 of 9anuar0, anno Do#ini
nineteen hundred and WWWWW.
WWWWWWWWWWWWWWWWW
9ud"e of the $ourt of First Instance
of said Province
+++ +++ +++
S*$TION >E4. Territorial !urisdiction. ' The !urisdiction of a notar0 public in a
province shall be co'e+tensive ith the province. The !urisdiction of a notar0
public in the $it0 of Manila shall be coe+tensive ith said cit0. No 'o/,r:
$.,44 3o$$e$$ ,)/.or%/: /o &o
,': 'o/,r%,4 ,-/ be:o'& /.e 4%m%/$ o* .%$ E)r%$&%-/%o'. )e#phases supplied-
( notar0 public@s co##ission is the "rant of authorit0 in his favor to perfor#
notarial acts.KCDL It is issued ,ithin and for, a particular territorial !urisdiction and
the notar0 public@s authorit0 is co'e+tensive ith it. In other ords, a notar0 public
is authori&ed to perfor# notarial acts, includin" the ta8in" of ac8noled"#ents,
ithin that territorial !urisdiction onl0. Outside the place of his co!!ission* he is
bereft of power to perfor! any notarial act/ he is not a notary public. (n0 notarial
act outside the li#its of his !urisdiction has no force and eMect. (s this $ourt
cate"oricall0 pronounced in Tecson v. Tecson?KCEL
(n ac8noled"#ent ta8en outside the territorial li#its of the oJcer@s
!urisdiction is void as if the person ta8in" it are holl0 ithout oJcial
character. )e#phasis supplied-
Since (tt0. Directo as not a co##issioned notar0 public for and in Tue&on $it0, he
lac8ed the authorit0 to ta8e the ac8noled"#ent of the testatri+ and the
instru#ental itnesses. In the sa#e vein, the testatri+ and her itnesses could not
have validl0 ac8noled"ed the ill before hi#. Thus, Felisa Ta#io de
;uenaventura@s last ill and testa#ent as, in eMect, not ac8noled"ed
as re2uired b0 la.
Moreover, (rticle 5 of the $ivil $ode provides?
(RT. 5. (cts e+ecuted a"ainst the provisions of #andator0 or prohibitor0 las
shall be void, e+cept hen the la itself authori&es their validit0.
The violation of a #andator0 or a prohibitor0 statute renders the act ille"al and void
unless the la itself declares its continuin" validit0. 1ere, #andator0 and prohibitor0
statutes ere trans"ressed in the e+ecution of the alle"ed ,ac8noled"#ent., The
co#pulsor0 lan"ua"e of (rticle 346 of the $ivil $ode as not co#plied ith and the
interdiction of (rticle >E4 of the Notarial <a as breached. Ineluctabl0, the acts of
the testatri+, her itnesses and (tt0. Directo
ere all co#pletel0 void.
The $ourt cannot turn a blind e0e to (tt0. Directo@s participation in the preparation,
e+ecution and unlaful ,ac8noled"#ent, of Felisa Ta#io de ;uenaventura@s ill.
1ad he e+ercised his notarial co##ission properl0, the intent of the la to
eMectuate the decedent@s 7nal state#entsKC5L as e+pressed in her ill ould not
have co#e to nau"ht.KC6L 1ence, (tt0. Directo should sho cause h0 he should
not be ad#inistrativel0 sanctioned as a #e#ber of the bar and as an oJcer of the
court.
7ERE0ORE, the petition is hereb0 "ENIE".
$osts a"ainst petitioner.
<et a cop0 of this decision be furnished the $o##ission on ;ar Discipline of the
Inte"rated ;ar of the Philippines for investi"ation, report and reco##endation on
the possible #isconduct of (tt0. Macario O. Directo.
SO OR"ERE".

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