8.

ACKNOWLEDGED BEFORE A NOTARY PUBLIC

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.
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.
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.
DECISION
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:
xxx
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.
II.
III.

. . . WHEN IT DECLARED NULL AND VOID THE DONATION EXECUTED BY

CELESTINA GANUELAS;
. . . WHEN IT UPHELD THE REVOCATION OF DONATION;
. . . 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.
G.R. No. 192916
MANUEL
vs.

October 11, 2010

A.

ECHAVEZ, Petitioner,

DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE REGISTER OF DEEDS OF

CEBU CITY, Respondents.
RESOLUTION
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. Florentino6and 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.81avvphi1
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.
MANUEL L. LEE,

-versus-

A.C. No. 5281

Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.

ATTY. REGINO B. TAMBAGO,

Respondent.

Promulgated:
February 12, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
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.
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]
[1]

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]

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.

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.

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:

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)

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
(b)

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.
xxx
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.
2.
3.
4.
5.
6.
7.

nature of each instrument executed, sworn to, or acknowledged before him;

person executing, swearing to, or acknowledging the instrument;
witnesses, if any, to the signature;
date of execution, oath, or acknowledgment of the instrument;
fees collected by him for his services as notary;
give each entry a consecutive number; and
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

(f)

xxx

xxx

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

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]

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.

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]

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
Pedro

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]

No.

Enrile
V.

Inton

Garcia

for

for

petitioner

petitioner

Rev.

Antonio

Father
Jesus

Lucio
de

Praga,

V.

Garcia.
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.

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.

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.

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.

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

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.

SYLLABUS

SO ORDERED.
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

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.

,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.

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.

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

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.

DECISION

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. GonzalesPrecilla 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

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 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 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?
"Q
"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).

What

"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

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

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

about

"A

The
Yes

(pages

vision
That

38,

is
39,

in
the
40.

the

vision

for

t.s.n.,

right
distant
hearing

eye

was

objects."cralaw
of

23

corrected?

virtua1aw

library

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 164165).
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.
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. 5Petitioner, 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
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."
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. 3965R 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, 49Rodriguez 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, 61Sabado
vs.
62
63
64
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, 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
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 noncompliance 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.
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.
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.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 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. 9993396, 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. SeangioSantos 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. 9890870 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.
ART 811. PROBATE OF HOLOGRAPHIC WILL
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.
G.R. No. L-12190
August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitionerappellant,
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 stolen4 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.
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.
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY,
JOSEPHINE SALCEDO, and EUFEMIA PATIGAS,respondents.
DECISION
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]
xxx
Q. Who sometime accompany her?

A. I sometimes accompany her

Q. In collecting rentals does she issue receipts?
A. Yes, sir.[13]
xxx
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]
xxx
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]
xxx
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]
xxx
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]
xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in
the word Vda.?

A.
Q.
A.
Q.

Yes, a little. The letter L is continuous.

And also in Matilde the letter L is continued to letter D?
Yes, sir.
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]
xxx
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]

xxx
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]
xxx
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]

xxx
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]
xxx
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]
xxx

xxx
Q.
A.
Q.
A.
Q.

You said after becoming a lawyer you practice your profession? Where?
Here in Cagayan de Oro City.
Do you have services rendered with the deceased Matilde vda de Ramonal?
I assisted her in terminating the partition, of properties.
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]
xxx
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]

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