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Reading assignments:

1. Dolar vs Diancin 55 PHIL 479


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-33365

December 20, 1930

Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant,


vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.
Montinola, Montinola and Hilado for appellant.
Lopez Vito and Lopez Vito for appellees.

MALCOLM, J.:
The will of the deceased Paulino Diancin was denied probate in the Court of First Instance of
Iloilo on the sole ground that the thumbmarks appearing thereon were not the thumbmarks of
the testator. Disregarding the other errors assigned by the proponent of the will, we would direct
attention to the third error which challenges squarely the correctness of this finding.
The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on
November 13, 1927. A thumbmark appears at the end of the will and on the left hand margin of
each of its pages in the following manner: "Paulino Diancin, Su Signo, Por Pedro Diamante."
The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo, and Juan
Dominado. The will is detailed in nature, and disposes of an estate amounting approximately to
P50,000.
For comparative purposes, Exhibit 8, a document of sale containing an admittedly genuine
thumbmark of Paulino Diancin, was presented. Photographs of the thumbmarks on the will and
of the thumbmark on Exhibit 8 were also offered in evidence. One, Carlos J. Jaena, attempted
to qualify as an "expert," and thereafter gave as his opinion that the thumbmarks had not been
made by the same person .One, Jose G. Villanueva, likewise attempted to qualify as were
authentic. The petition of the proponent of the will to permit the will to be sent to Manila to be
examined by an expert was denied. On one fact only were the opposing witnesses agreed, and
this was that the ink used to make the thumbmarks on the will was of the ordinary type which
blurred the characteristics of the marks, whereas the thumbmark on Exhibit 8 was formed
clearly by the use of the special ink required for this purpose. The trial judge expressed his
personal view as being that great differences existed between the questioned marks and the
genuine mar.lawphi1>net

The requirement of the statute that the will shall be "signed" is satisfied not only the customary
written signature but also by the testator's or testatrix' thumbmark .Expert testimony as to the
identity of thumbmarks or fingerprints is of course admissible. The method of identification of
fingerprints is a science requiring close study .Where thumb impressions are blurred and many
of the characteristic marks far from clear, thus rendering it difficult to trace the features
enumerated by experts as showing the identity or lack of identity of the impressions, the court is
justified in refusing to accept the opinions of alleged experts and in substituting its own opinion
that a distinct similarity in some respects between the admittedly genuine thumbmark and the
questioned thumbmarks, is evident .This we do here. (Emperor vs. Abdul Hamid [1905], 32
Indian L. Rep., 759, cited in 3 Chamberlayne on the Modern Law of Evidence, sec. 2561, notes
3.)
There is another means of approach to the question and an obvious one. The three instrumental
witnesses united in testifying concerning the circumstances surrounding the execution of the
will. It was stated that in addition to the testator and themselves, on other person, Diosdado
Dominado, was present. This latter individual was called as a witness by the oppositors to the
will to identify Exhibit 8. He was later placed on the witness stand by the proponent on rebuttal,
and thereupon declared positively that he was the one who prepared the will for the signature of
Paulino Diancin; that the thumbmarks appearing on the will were those of Paulino Diancin, and
that he saw Paulino Diancin make these impressions. The testimony of a witness called by both
parties is worthy of credit.
We reach the very definite conclusion that the document presented for probate as the last will of
the deceased Paulino Diancin was, in truth, his will, and that the thumbmarks appearing thereon
were the thumbmarks of the testator .Accordingly, error is found, which means that the
judgment appealed from must be, as it is hereby, reversed, and the will ordered admitted to
probate, without special finding as to costs in this instance.
Avancea, C.J., Johnson, Street, Villamor, Ostand, Johns, Romualdez and Villa-Real, JJ.,
concur.

2. DE GALA vs DE GALA 51 PHIL 480


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27989

February 8, 1928

Intestate of the deceased Pedro de Gala.


SINFOROSO DE GALA, petitioner-appellee,
vs.
GENEROSO DE GALA and JOSEFA ALABASTRO, opponents-appellants.
Jose G. Generoso and Araneta & Zaragoza for appellants.
Abad Santos, Camus, Delgado & Recto for appellee.
STREET, J.:
This is an administration proceeding from the Court of First Instance of the Province of Tayabas
whereby the petitioner, Sinforoso de Gala, seeks to enforce the liquidation of the estate of his
father, Pedro de Gala, deceased, against Josefa Alabastro, as widow, and Generoso de Gala, a
son of the decedent and half-brother of the plaintiff, and to recover from them the hereditary
portion which the plaintiff alleges pertains to him in said estate. Opposition was made to the
proceeding by the two defendants, and this opposition finally took the form of a motion to
exclude the plaintiff from the participation in the estate on the ground that he had no heritable
interest therein. Upon considering this motion the trial court sustained the plaintiff's right and
denied the motion. From this order the defendants appealed.
The first point raised in the appellants' bill of exceptions has reference to a matter of procedure,
which, in the view we take of the case, is not necessary to the decision. We therefore
provisionally assume that no error was committed by the trial judge in entertaining the motion
which gave origin to the appealed order; and we pass at once to the consideration of the
question of substantive law involved in the case. The facts are unfortunately few and
undisputed.
It appears that Pedro de Gala died intestate in the City of Manila on or about July 23, 1919,
leaving an estate in the Province of Tayabas and in the City of Manila, consisting of real and
personal property. It is stated in the petition that the value of this estate is approximately five
hundred thousands pesos (P500,000), with an annual income of about fifty thousand pesos
(P50,000). The defendants do not admit that the value of the estate reaches the amount stated,
but it is evidently large. The plaintiff, Sinforoso de Gala, is a natural son of Pedro de Gala and
was born on June 17, 1879, while Generoso de Gala, one of the defendants herein, is a
legitimate son of Pedro de Gala and was born on July 17, 1881. As already stated, the other
defendant, Josefa Alabastro, is the widow of Pedro de Gala
The plaintiff, Sinforoso de Gala, was never recognized as a natural son by the voluntary act of
his father, Pedro de Gala, in life; and in order to enforce recognition the plaintiff, on august 29,
1917, instituted an action against his father to compel recognition. While this litigation was

pending Pedro de Gala died, and Josefa Alabastro and Generoso de Gala were substituted as
defendants. When the cause was finally heard in the Supreme Court, upon appeal from a
judgment of the Court of First Instance, which had been unfavorable to the plaintiff, said
judgment was reversed and judgment was here entered requiring the defendants to recognize
the plaintiff as the natural son of Pedro de Gala (De Gala, 42 Phil., 771). Pursuant to said
judgment, and in order to obtain his share in the estate of his deceased father, the present
proceeding was begun.
The right of the plaintiff to participate in the estate of his deceased father is based upon articles
134 and 942 in relation with article 840 of the Civil Code, defining the heritable portion of a
recognized natural child in case of the concurrence of such heir with one or more legitimate
children. In this connection it will be remembered that the right of a recognized natural child to
inherit any part of the estate of his father was, in Spanish law, first conferred by the Civil Code,
which went into effect in the Philippine Islands on December 8, 1889.
In support of the plaintiff's right to participate in the estate, reference is made to subsection 12
of the transitory provisions of the Civil Code wherein it is stated, in effect, that the estates of
those who die, with or without will, subsequently to the taking effect of the Civil Code, shall be
allotted and divided according to the Code, and that the legal portion given by the Code shall be
respected. The defendants on the contrary question the heritable right of the plaintiff, basing
their contention on No. 1 of the transitory provisions, as interpreted by this court in Rocha vs.
Tuason and Rocha de Despujols (39 Phil., 976).
The transitory provisions thus brought under discussion are vital to the case and are therefore
here reproduced:
Changes introduced by this Code prejudicial to rights acquired under prior civil law shall
not have rotroactive effect.
For the application of the corresponding legislation in cases not expressly determined in
the Code, the following rule shall be observed:
1. Rights originating, according to prior legislation, in acts that occurred under the
regimen of such legislation shall be governed thereby, even if the Code regulates them
in some other way or does not recognize them. But if the right shall have been declared
for the first time in this Code, it shall have effect at once, although the fact originating it
may have occurred under the former regimen, whenever it is not prejudicial to any other
acquired right of equal origin.
xxx

xxx

xxx

12. Rights to the inheritance of one who may have died, with or without a will, before this
Code goes into effect, shall be governed by prior legislation. The inheritance of those
dying afterwards, with or without a will, shall be allotted and divided in accordance with
this Code, but in harmony, in so far as the latter permits it, with the testamentary
dispositions. Therefore legal portions, betterments, and legacies shall be respected; but
their amounts shall be reduced when it is not possible in any other manner to give to
each participant in the inheritance the share pertaining to him according to this Code.

From the facts already stated it will be seen that both the natural and the legitimate son of Pedro
de Gala were born before the Civil Code went into effect in these Islands; while the death of the
father and the enforced judicial recognition of the natural son occurred under the regimen of
said Code. It is a tenable assumption that the legal recognition of the plaintiff as a natural son
should be considered as effective from the date of the filing of the complaint in 1917; but if not to
so, it was at least effective from the date of the judgment entered in 1992. For the purposes of
this suit the point is unimportant, since it is clear that in any case legal recognition did not occur
until long after the Civil Code became effective in these Islands.
As the death of Pedro de Gala and the opening of the succession to his estate occurred under
the regimen of the Civil Code, we are of the opinion that No. 12 of the Transitory Provisions is of
exact and particular application, and that there is nothing in No. 1 of the same provisions which
supplies any obstacle to the application of No. 12 to the facts of this case. In paragraph No. 12 it
is expressly declared that the estates of those who die after the Code becomes effective shall
be distributed according to the Code and that legal portions shall be respected. This language
can have no other meaning than that the hereditary portion given to the recognized natural child
By No. 3 of article 134 of the Civil Code shall be recognized as valid, for the circumstance that
the plaintiff in this case, though beginning his action for acknowledgement within the life of his
father, did not succeed in obtaining a judgment compelling recognition until after his father was
dead cannot be considered in any wise prejudicial to him. That No. 12 of the Transitory
Provisions is applicable to the estates of persons dying after the Civil Code went into effect is
recognized in decisions of the Supreme Court of Spain dated respectively March 20, 1897, and
June 24, 1897; and this doctrine is expounded by Manresa in his comment upon No. 12 as
follows:
Here is the legal reason and at the same time the determination of the scope and
meaning of the rule of which we speak. It does not mean that the succession shall be
governed by one or the other law according to whether the ancestor may have died
before or after the Code went into effect, nor was there are need of making such a
statement, because this is already provided for in rule 2, and what is provided for in the
present rule by way of exception to what is provided for in the former is that the rights of
forced heirs to the inheritance in successions opened after the Civil Code went into
effect shall always be governed by the provisions of the latter, to which end the
provisions of wills executed before May 1st, 1889, referring to the rights of said heirs, will
be adjusted to the provisions of said Code.
The reason of that is obvious, because in the matter of succession there is no vested
right until the succession is opened that is, till the death of the person whose inheritance
is in question, as we have already said on another occasion, and by the present it is
made to conform with the precepts of modern legislation, harmonizing it and making it
compatible with the transcedent reform effected by the Civil Code.
The Supreme Court, in its decision of June 24, 1897, giving the same explanation to the
present rule, declared that the principle of the irretroactivity of the new law governs only
such rights as originated under the regimen of the old law, it being well known that
hereditary rights do not vest until the death of the person whose inheritance is in
question. Therefore, they cannot be governed by the old law if the death is posterior to
the new, which is the very thing we have stated as being the foundation of juridicial
reason of this precept.

Directing our attention now to No. 1 of the Transitory Provisions, which is supposed by the
appellants to be incompatible with the right asserted by the plaintiff, we note first that proposition
No. 1 of a more general nature than proposition No. 12, since the latter provides a particular rule
for the distribution of the estates of persons dying after the Code enters into effect, while No. 1
states a general rule for harmonizing certain competing rights. In accordance then with the rule
that the particular governs the general, No. 12 must control over No. 1.
It will be noted that, under No. 1, where there are two competing rights, one of which is given for
the first time by the Code, the law looks to the acts in which the two competing rights may have
originated, and when it is found that the acts which gave origin to the competing rights occurred
prior to the adoption of the Code, the right newly recognized in the Code cannot be given effect,
because prejudicial to the other right. In the case before us, while it is evident that the
successional right of the legitimate son, Generoso de Gala, did not become vested until the
death of his father, yet it is also clear that this right is derived from a fact which occurred under
law anterior to the Code, namely, the fact that said son was born with the status of legitimate
son. It is this fact which originated the successional right of this heir. But with respect to the
natural son, Sinforoso de Gala, it is equally obvious that the act that gave origin to his
successional right was the enforced judicial recognition resulting from the civil action begun by
the plaintiff in 1917. This act occurred under the Code. In this connection it must be
remembered that the fact of birth does not give the natural child any heritable right whatever in
the estate of his father. This is equally true of both the old and the new law. It is the recognition
of the natural child that originates his right of succession, recognized for the first time in the
Code. As a consequence the two competing successional rights in this case do not have the
same origin in respect to the estate of law under which they occurred, since one had its origin in
an act occuring under the anterior legislation while the other had its origin in an act occuring
under the Code.
Upon analyzing the language of No. 1 of the Transitory Provisions it will be noted that it is only
when the two competing rights have their origin in acts occuring under the old regime that the
restriction applies which prohibits the right newly granted in the Code from having it due effect. If
the acts originating the two rights occur under the Code, or if either occurs under the Code, the
Code provision must rule, and the right newly given by it prevails. It is obvious, for instance, that
if, in the case before us, the legitimate soon had been born after the Code entered into effect,
the provisions of the Code would have prevailed; also that the same result would have followed
in such case even if the act of recognition of the natural so had occurred prior to the date when
the Code took effect.
But it is supposed that the decision of this court in the case of Rocha vs. Tuason and Rocha de
Despujols (39 Phil., 976), is inconsistent with the right of the plaintiff. This is a mistake. In the
case mentioned both the natural and the legitimate child were born under the regimen of the old
law, and in addition to this there had been a tacit recognition of the natural child which was
valid under said law long prior to the date when the Civil Code went into effect. Both the
competing right in that case therefore had their origin in acts which occurred under the earlier
regimen; and this circumstance makes the very case for the application of the restriction upon
the new right which is expressed in the closing words of No. 1 of the Transitory Provisions. It
may be noted that three members of the court dissented in Rocha vs. Tuason and Rocha de
Despujols, a circumstance which detracts in some measure from the weight of the precedent;
and the attorneys for the appellee have drawn in question the correctness of the judgment. Into
this controversy it is not necessary to enter. We may observe, however, that the opinion of the

court in the case referred to makes no reference to No. 12 of the Transitory Provisions, which if
reflectively weighed, might have been found pertinent to the decision.
The order appealed from is in our opinion without error, and it is accordingly affirmed, with
costs. So ordered.
Johnson, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

3. GARCIA vs LACUESTA GR L-4067


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following
attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it bears the corresponding number in letter
which compose of three pages and all them were signed in the presence of the testator
and witnesses, and the witnesses in the presence of the testator and all and each and
every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA
CORTES

(Sgd.) BIBIANA ILLEGIBLE


The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left margin of the three pages of which the will

consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as
required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing
by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no
need for such recital because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that
the cross is as much a signature as a thumbmark, the latter having been held sufficient by this
Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

4. BARUT vs CABACUNGAN 21 PHIL 461


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,


vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and
another, No. 6284,1just decided by this court, wherein there was an application for the probate
of an alleged last will and testament of the same person the probate of whose will is involved in
this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a
last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the
terms of said will Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills
by her made. She also stated in said will that being unable to read or write, the same had been
read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo
Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. The will referred to as being a later will is the one involved in case No. 6284 already
referred to. Proceeding for the probate of this later will were pending at the time. The evidence
of the proponents and of the opponents was taken by the court in both cases for the purpose of
considering them together.
In the case before us the learned probate court found that the will was not entitled to probate
upon the sole ground that the handwriting of the person who it is alleged signed the name of the
testatrix to the will for and on her behalf looked more like the handwriting of one of the other
witnesses to the will than that of the person whose handwriting it was alleged to be. We do not
believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to

overcome the uncontradicted testimony of all the witnesses to the will that the signature of the
testatrix was written by Severo Agayan at her request and in her presence and in the presence
of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is
written at her request and in her presence and in the presence of all the witnesses to the
execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name
signed below that of the testatrix as the person who signed her name, being, from its
appearance, not the same handwriting as that constituting the name of the testatrix, the will is
accordingly invalid, such fact indicating that the person who signed the name of the testatrix
failed to sign his own. We do not believe that this contention can be sustained. Section 618 of
the Code of Civil Procedure reads as follows:
No will, except as provided in the preceding section, shall be valid to pass any estate,
real or personal, nor charge or effect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other person in his presence, and by
his expenses direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the court holds that the person
who signs the name of the testator for him must also sign his own name The remainder of the
section reads:
The attestation shall state the fact that the testator signed the will, or caused it to be
signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the presence
of each other. But the absence of such form of attestation shall not render the will invalid
if it is proven that the will was in fact signed and attested as in this section provided.
From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not. The
important thing is that it clearly appears that the name of the testatrix was signed at her express
direction in the presence of three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute requires. It may be wise as a
practical matter that the one who signs the testator's name signs also his own; but that it is not
essential to the validity of the will. Whether one parson or another signed the name of the
testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down by the trial court, if it did lay
down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the
statute relating to the execution of wills do not in any sense require such a provision. From the
standpoint of language it is an impossibility to draw from the words of the law the inference that
the persons who signs the name of the testator must sign his own name also. The law requires
only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is
unable to write may be signed by another by express direction to any instrument known to the
law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the
person who writes the name of the principal in the document to sign his own name also. As a

matter of policy it may be wise that he do so inasmuch as it would give such intimation as would
enable a person proving the document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it is unnecessary. The main thing
to be established in the execution of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his request, it is none the less valid,
and the fact of such signature can be proved as perfectly and as completely when the person
signing for the principal omits to sign his own name as it can when he actually signs. To hold a
will invalid for the lack of the signature of the person signing the name of the principal is, in the
particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point.
The headnote in the case last above stated gives an indication of what all of cases are and the
question involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name he wrote his own
upon the will.Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in which
the person who signed the will for the testator wrote his own name to the will instead of writing
that of the testator, so that the testator's name nowhere appeared attached to the will as the one
who executed it. The case of Ex parte Arcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in
this form: "By the testator. John Doe, Richard Roe." All this must be written by the
witness signing at the request of the testator.
The only question for decision in that case, as we have before stated, was presented by the fact
that the person who was authorized to sign the name of the testator to the will actually failed to
sign such name but instead signed his own thereto. The decision in that case related only to
that question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set
forth no reason whatever why the will involved in the present litigation should not be probated.
The due and legal execution of the will by the testatrix is clearly established by the proofs in this
case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent
will, that is resolved in case No. 6284 of which we have already spoken. We there held that said
later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to
enter an order in the usual form probating the will involved in this litigation and to proceed with
such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.

Comparatives Are:
1. Singson v. Florentino & Taboada v. Rosal compare to Azuela v. Morales
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4603

October 25, 1952

In re: Petition for the probate of the will of the deceased LEONA SINGSON. MANUEL
SINGSON, petitioner-appellee,
vs.
EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, and JOSEFINA FLORENTINO
VDA. DE LIM,oppositors-appellants.
Vicente Paz for appellants.
Felix V. Vergara and Pedro Singson for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from a decision of the Court of First Instance of Ilocos Sur admitting to probate
the last will and testament of the late Leona Singson.
On January 13, 1948, Leona Singson died in Vigan, Ilocos Sur leaving a will. In said will the
deceased instituted as heirs her brothers Evaristo, Dionisio and Manuel, her nieces Rosario F.
de Donateo, Emilia Florentino and Trinidad Florentino de Paz, her grandniece Consolacion
Florentino, and some servants. She named her brothers Evaristo and Manuel as executors of
the will. On February 2, l948, Manuel Dingson filed a petition for the probate of said will.
On March 6, 1948, Emilia Florentino, Trinidad Florentino de Paz and Josefina Florentino Vda.
de Lim, daughters of a sister of the deceased, opposed the petition alleging among other
grounds that the signatures appearing in the will are not the genuine signatures of the
deceased, and that the will has not been executed in accordance with the formalities of the law.
After due trial, the court found that the will has been executed in accordance and admitted the
same to probate. The oppositors appealed to the Court of Appeals, but the case was later
certified to this court for the reason that it involves purely questions of law.
The first error assigned refers to the admission by the lower court of the deposition of Fidel
Reyes, an instrumental witness, which was taken because he was then suffering from paralysis
and was thus physically incapacitated to appear and testify in court. It is the claim of the
oppositors that, under section 11, Rule 77 of the Rules, if the will is contested, all the
subscribing witnesses present in the Philippines must be produced and examined, and if they
are dead, absent or insane, this fact must be satisfactorily shown to the court. If the subscribing
witness is present in the Philippines but outside the province where the will has been filed, his
deposition must be taken. In this case Fidel Reyes was not outside the province, in fact he was
then living in the place where the case was pending trial. He, therefore, must appear in court

and his deposition cannot be taken. And so they contend that the lower court erred in admitting
his deposition instead of taking his testimony.
It should be noted that one of the three instrumental witnesses of the will, namely. Bonifacio
Brillantes, was already dead when the case came up for trial and the only witness then available
were Victorio Lazo and Fidel Reyes who was then unable to appear because of his physical
ailment. And when this matter was brought to the knowledge of the court. The latter manifested
its desire to go to the house of the ailing witness for the taking of his testimony, but the move
was prevented because of the confirmity of counsel for the oppositors to the taking of his
deposition. And because of this conformity, the deposition was taken and on that occasion
opposing counsel was present and actually took part in the taking of the deposition. In the face
of these facts, we opine that, while the taking of the deposition was not made in strict
compliance with the rule (section 11, Rule 77), the deficiency, if any, has been cured by the
waiver evinced by counsel for the oppositors which prevented the court from constituting itself in
the residence of the witness.
We believe, however, that the deposition may also be justified by interpreting section 11, Rule
77, in connection with Rule 18, section 4 (c), of the rules, relative to the taking of the deposition
of a witness in ordinary cases when he is unable to testify because of sickness. Interpreting and
harmonizing together these two provisions we may draw the conclusion that even if an
instrumental witness is within the seat of the court but is unable to appear because of sickness,
as in this case, his deposition may still be taken, for a different interpretation would be
senseless and impractical and would defeat the very purpose which said Rule 77 intends to
serve.
Another point raised by oppositors refers to the alleged failure of the attestation clause to state
the number of the sheets or pages in which the will is written which, it is claimed, is fatal
because it is contrary to the express requirement of the law.
The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which
the will is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada,
42, Phil., 180; Uy Coque vs. Navas L. Sioca, 45 Phil., 405; Gumban vs. Gorecho, 50 Phil., 30;
Quinto vs. Morata, 54 Phil., 481; Echavarria vs. Sarmiento, 66 (Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect
of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of construction and
places it within the realm of similar case where a broad and more liberal view has been adopted
to prevent the will of the testator from being defeated by purely technical considerations.
One of such case is De Gala vs. Gonzales and Ona, 53 Phil., 104. Here one of the objections
raised was that the attestation clause does not state that the will has not been signed in the
presence of the witnesses although this fact appears in the last paragraph of the body of the
will, and the Court in overruling the objection, said that "it may be conceded that the attestation

clause is not artistically drawn and that, standing alone, it does not quite meet the requirements
of the statute, but taken in connection with the last clause of the body of the will, it is fairly clear
and sufficiently carries out the legislative intent; it leaves no possible doubt as to the authenticity
of the document."
Another case that maybe cited is Mendoza vs. Pilapil (72 Phil., 546). In this case, the objection
was that the attestation clause does not state the number of pages upon which the will was
written, and yet the court held that the law has been substantially complied with inasmuch as in
the body of the will and on the same page wherein the attestation clause appears written it is
expressly stated that will contains three pages each of which was numbered in letters and in
figures. Said the court:
El proposito de la ley al establecer las formalidades que se requieren en un testamento,
es indudablemente asegurar y garantizar su autenticidad contra la mala fe y el fraude,
para evitar que aquellos que no tienen derecho a suceder al testador le suceden y
salgan beneficiados con la legalizacion del mismo. Se ha cumplido dicho proposito en el
caso de que se viene hablando porque, en el mismo cuerpo testamento y en la misma
pagina donde aparece la clausula de atestiguamiento, o sea la tercera, se expresa que
el testamento consta de tres paginas y porque cadauna de las dos primeras lleva en
parte la nota en letras, y en parte la nota en guarismos, de que son respectivamente la
primera y segunda paginas del mismo. Estos hechos excluyen evidentemente todo
temor, toda sospecha, o todo asomo de duda de que se haya sustituido alguna e sus
paginas con otra. (Mendoza vs. Pilapil. 72 Phil., 546.)
Considering the form in which the will in question is written in the light of the liberal ruling above
adverted to, the conclusion is inescapable that the will has been drafted in substantial
compliance with the law. This opinion is bolstered up when we examine the will itself which
shows on its face that it is really and actually composed of eight pages duly signed by the
testatrix and her instrumental witnesses.
The remaining to be determined is: does the attestation clause state that the testatrix signed
each and every page of the will in the presence of the three instrumental witnesses as required
by law?
The disputed attestation clause read as follows:
Nosotroslos testigos, conforme al ruego de Da. Leona Singson en este testamento,
despues de anunciarnos que este es su testamento donde hizo sus ordenes sobre su
verdadera yultima voluntad, firmo e imprimio su marca digital en presencia de ella y
delante de cada uno de nosotros al pie del citado testamento y en el margen izquierdo
de dus otras paginas. Yhemos observado que Da. Leona Singson estaba en su sano
juicio, pensamiento y uso de sus sentidos. (Exh. A-1)
A perusal of the above attestation clause would at first glance give the impression that the
testatrix merely signed or stamped her thumbmark on the will in the presence of the witnesses,
without stating the place where her signature or thumbmark had been affixed, which impression
is caused by the fact that right after the sentencefirmo e imprimio su marca digital en presencia
de todos nosotros, there appears a semi-colon is disregarded, we would at one see that the
testatrix signed or affixed her thumbmark not only at the bottom of the will but also on the left
margin of each page thereon, considering the concluding part of the sentence concerning the

signing of the will. That semicolon undoubtedly has been placed there by mistake or through
inadvertence, as may be deduced from the use of the word tambien made by the witnesses in
the sentence immediately following, which conveys the idea of oneness in action both on the
part of the testatrix and the witnesses. Thus considered and interpreted, the attestation clause
complies substantially with the law.
The appellants earnestly contend that the attestation clause fails to show that the
witnesses signed the will and each and every page thereof because it simply says "que
nosotros los testigos hemos tambien firmado en presencia del uno al otro" (that we the
witnesses also signed in the presence of the testatrix and of each other).
In an answer to this contention it may be said that this portion of the attestation clause
must be read in connection with the portion preceding it, which states that the testatrix
signed the will and on all the margins thereof in the presence of the witnesses;
especially because the word also used therein establishes a very close connection
between said two portions of the attestation clause. This word also should, therefore, be
given in its full meaning which, in the instant case, is that the witnesses signed the will in
the same manner as the testatrix did. The language of the whole attestation clause,
taken together, clearly shows that the witnesses signed the will and on all the margins
thereof in the presence of the testatrix and of each other." (Rey vs. Cartagena, 56 Phil.,
pp. 282, 284)
In view of the foregoing, we find that the lower court did not commit any of the errors assigned
by appellants and, therefore, we affirm the decision appealed from, with costs.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, and Labrador, JJ., concur.
Jugo, J., concurs in the result.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch
III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:


This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate
of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the
probate of the will, the motion for reconsideration and the motion for appointment of a special
administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last
will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire testamentary dispositions and is signed
at the end or bottom of the page by the testatrix alone and at the left hand margin by the three
(3) instrumental witnesses. The second page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause by the three (3) attesting
witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the
same order, the petitioner was also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken
as a result of the disallowance of the will. He also asked that the ten-day period required by the
court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of
special administrator was likewise denied because of the petitioner's failure to comply with the
order requiring him to submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in
the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
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 shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the lacier witnesses and signed
the will and 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 witnesses, it shall be
interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial
will to be valid, it is not enough that only the testatrix signs at the "end" but an the three
subscribing witnesses must also sign at the same place or at the end, in the presence of the
testatrix and of one another because the attesting witnesses to a will attest not merely the will
itself but also the signature of the testator. It is not sufficient compliance to sign the page, where
the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after

the signature of the testatrix. He contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where the signatures are to be
found as long as this space or particular location wherein the signatures are found is consistent
with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its
end by the testator himself or by the testator's name written by another 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.
It must be noted that the law uses the terms attested and subscribed 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. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in
this case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due execution
of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the
usual forms should be ignored, especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective 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 in respect to the formalities in the execution of a will" (Report
of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient
to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case
when the instrumental witnesses signed at the left margin of the sole page which contains all
the testamentary dispositions, especially so when the will was properly Identified by subscribing
witness Vicente Timkang to be the same will executed by the testatrix. There was no question of
fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the

fact that, in this case, it is discernible from the entire wig that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists
of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations
with respect to the purpose of the requirement that the attestation clause must state the number
of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number of
pages or sheets upon which the win is written, which requirement has been held
to be mandatory as an effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be that the attestation clause must
contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if
the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets or pages upon
which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the realm
of similar cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that
the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be
so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control where
the purpose of the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459,
at 1479 (decision on reconsideration) 'witnesses may sabotage the will by
muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the
motion for appointment of a special administrator are set aside. The respondent court is ordered
to allow the probate of the wig and to conduct further proceedings in accordance with this
decision. No pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,


vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a merejurat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three defects is just
aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog
of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in
the due execution of the notarial will. Article 806 likewise imposes another safeguard to the
validity of notarial wills that they be acknowledged before a notary public by the testator and
the witnesses. A notarial will executed with indifference to these two codal provisions opens
itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput
siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na
ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin
o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito
ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na
nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43,
Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay
Felix Azuela at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling
ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo
1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi
ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself
as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that
the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a
defense in several court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioners right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing
abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedents signature did not appear on the second
page of the will, and the will was not properly acknowledged. These twin arguments are among
the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The
RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino
Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of a will x x x with the end in view of giving
the testator more freedom in expressing his last wishes;" 7 and from this perspective, rebutted
oppositors arguments that the will was not properly executed and attested to in accordance with
law.
After a careful examination of the will and consideration of the testimonies of the subscribing
and attesting witnesses, and having in mind the modern tendency in respect to the formalities in
the execution of a will, i.e., the liberalization of the interpretation of the law on the formal

requirements of a will with the end in view of giving the testator more freedom in expressing his
last wishes, this Court is persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after
the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng
Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa
amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng
kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered correlatively in letters
placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains
the entire text of the testamentary dispositions, and the second page contains the last portion of
the attestation clause and acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which contains only the last portion of the
attestation clause and acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court
of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The
Court of Appeals noted that the attestation clause failed to state the number of pages used in
the will, thus rendering the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the substantial compliance rule." 11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which
we replicate in full.
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 shall state the number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or 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 witnesses, it shall be interpreted to
them.
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.
The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation clause. Yet the blank was
never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that
among the defects of the will in question was the failure of the attestation clause to state the
number of pages contained in the will.15 In ruling that the will could not be admitted to probate,
the Court made the following consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet would completely
change the testamentary dispositions of the will and in the absence of a statement of the
total number of sheets such removal might be effected by taking out the sheet and
changing the numbers at the top of the following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty." 16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state
the number of sheets or pages used. This consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." 17 It
was further observed that "it cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with; and as the Legislature has seen
fit to prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that
the attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does
not state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118
SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned appeal at bench. This is so because, in the case
of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the will, however, the same was found in
the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which
the will is written, which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it will have the effect
of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more liberal view
has been adopted to prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in
the Will states the number of pages used in the:
"x x x

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the
fact that, in this case, it is discernible from the entire will that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists
of two pages including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part
of the Will. The will does not even contain any notarial acknowledgment wherein the number of
pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering
that the requirement that the attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the attestation clause is concerned,
that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code
states: "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 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective 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. This objective is in accord with
the [modern tendency] in respect to the formalities in the execution of wills." 24 However,
petitioner conveniently omits the qualification offered by the Code Commission in the very same
paragraph he cites from their report, that such liberalization be "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."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado,
speaking for the Court on the conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in wills.27 Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the
application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article
809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should
be applied:
x x x 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 these 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.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is
one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that the witnesses subscribed
their respective signatures to the will in the presence of the testator and of each other, 30 the
other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission
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."31 Thus, a failure by the attestation clause to state that the testator signed every
page can be liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one anothers presence
should be considered a fatal flaw since the attestation is the only textual guarantee of
compliance.32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. 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.33 The failure to state the number of pages equates with the absence of an averment on
the part of the instrumental witnesses as to how many pages consisted the will, the execution of
which they had ostensibly just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states elsewhere in it how many pages it
is comprised of, as was the situation inSingson and Taboada. However, in this case, there could
have been no substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of pages which
comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator himself or herself had
decided to convey property post mortem in the manner established in the will. 35 The
transcendent legislative intent, even as expressed in the cited comments of the Code
Commission, is for the fruition of the testators incontestable desires, and not for the
indulgent admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the
will itself reveals a couple of even more critical defects that should necessarily lead to its
rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before
the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although the page containing
the same is signed by the witnesses on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been substantially complied with, a
majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had
not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause
is "a memorandum of the facts attending the execution of the will" required by law to be made
by the attesting witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the testator
and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates
the requirement that the instrumental witnesses sign each page of the will, from the requisite
that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents
behind these two classes of signature are distinct from each other. The signatures on the lefthand corner of every page signify, among others, that the witnesses are aware that the page
they are signing forms part of the will. On the other hand, the signatures to the attestation
clause establish that the witnesses are referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will.
An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses
signed the left-hand margin of the page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause. Without
diminishing the value of the instrumental witnesses signatures on each and every page, the fact

must be noted that it is the attestation clause which contains the utterances reduced into writing
of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages used upon which the will is written; the
fact that the testator had signed the will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge.
The requirement under Article 806 that "every will must be acknowledged before a notary public
by the testator and the witnesses" has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been segregated from the other requirements
under Article 805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner
of contemplation can those words be construed as an acknowledgment. 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.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has attested to the notary that
the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language
of the jurat should avow that the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself "signed and notarized" the
document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the decedent
and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the instrumental witnesses executed or
signed the will as their own free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those made beyond the free
consent of the testator. An acknowledgement is not an empty meaningless act. 43 The
acknowledgment coerces the testator and the instrumental witnesses to declare before an
officer of the law that they had executed and subscribed to the will as their own free act or deed.
Such declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article
806. A notarial will that is not acknowledged before a notary public by the testator and
the witnesses is fatally defective, even if it is subscribed and sworn to before a notary
public.
There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses
sign each and every page of the will on the left margin, except the last; and that all the pages
shall be numbered correlatively in letters placed on the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her
only signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will
itself is not numbered correlatively in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the notion that these two requirements
be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be of a
general lack of due regard for the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate
denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA
Associate Justice

CARPIO MORALES
Asscociate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Third Division
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice

2. Cargo v. Cargo compare to Icasiano v. Icasiano


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,


vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the
signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause
is 'a memorandum of the facts attending the execution of the will' required by law to be made by
the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation
clause cannot be considered as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the testator
and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.


CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document
and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as
such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to
be published for three (3) successive weeks, previous to the time appointed, in the newspaper
"Manila chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to
which proponent objected. Hence, on November 18, 1958, the court issued an order appointing
the Philippine Trust Company as special administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but
on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition,
alleging that the decedent left a will executed in duplicate with all the legal requirements, and
that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July
30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court issued the order
admitting the will and its duplicate to probate. From this order, the oppositors appealed directly

to this Court, the amount involved being over P200,000.00, on the ground that the same is
contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last
will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present during the execution
and signing of the decedent's last will and testament, together with former Governor Emilio
Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both testified as to the due
execution and authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and testament at his house in
Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the
end and in every page, it does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended
and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will
and its duplicate were subscribed at the end and on the left margin of each and every page
thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in
the testatrix's presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages of the original and
duplicate of said will were duly numbered; that the attestation clause thereof contains all the
facts required by law to be recited therein and is signed by the aforesaid attesting witnesses;
that the will is written in the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses; that the will was executed
on one single occasion in duplicate copies; and that both the original and the duplicate copies
were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June
2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that
he may have lifted two pages instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the
same occasion as the original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and pressure because the

testatrix was deceived into adopting as her last will and testament the wishes of those who will
stand to benefit from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact
of the deceased and not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not to oppose the probate
of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed
both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary public
who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the
will and its duplicate were executed in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos for the proponents, but principally
because of the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's range of
normal scriptural variation. The expert has, in fact, used as standards only three other
signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we
feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that
would justify the charge of forgery, taking into account the advanced age of the testatrix, the
evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed
right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings were
affixed to different kinds of paper, with different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of
the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United
States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14
Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their shares in the free part do not
suffice to prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion
of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses
are valid or not is a matter to be litigated on another occassion. It is also well to note that, as
remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining as grounds for opposing
probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature
to one page of a testament, due to the simultaneous lifting of two pages in the course of signing,
is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is
assured not only the fact that the testatrix and two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control, where the purpose of the law to guarantee the identity
of the testament and its component pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause and the acknowledgment
before the Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot
by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan
vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the
pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect
(Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud and bid faith but without
undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and
can be probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the
omission of one signature in the third page of the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication
does not affect the jurisdiction of the probate court, already conferred by the original publication
of the petition for probate. The amended petition did not substantially alter the one first filed, but
merely supplemented it by disclosing the existence of the duplicate, and no showing is made
that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that
the amendment deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

3. Sps. Ajero v. CA compare to Kalaw v. Relova


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 106720 September 15, 1994


SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which
reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of
the trial court is hereby REVERSED and SET ASIDE, and the petition for probate
is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc.
No. Q-37171, and the instrument submitted for probate is the holographic will of the late
Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero,
private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe
Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing
mind, not acting under duress, fraud or undue influence, and was in every respect capacitated
to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor
the signature therein was in decedent's handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured by petitioners through
improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero.

He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del
Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she
was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to
probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary capacity of
the testatrix, this probate court finds no reason at all for the disallowance of the
will for its failure to comply with the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different
from the will actually executed by the testatrix. The only objections raised by the
oppositors . . . are that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and not to the question
of identity of will. No other will was alleged to have been executed by the testatrix
other than the will herein presented. Hence, in the light of the evidence adduced,
the identity of the will presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually executed by the
testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the handwriting of
the testatrix has been disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the handwriting of the testatrix have been
presented and have explicitly and categorically identified the handwriting with
which the holographic will in question was written to be the genuine handwriting
and signature of the testatrix. Given then the aforesaid evidence, the requirement
of the law that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the testatrix was
completely in her sound mind when he visited her during her birthday celebration
in 1981, at or around which time the holographic will in question was executed by
the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of
making the will, knew the value of the estate to be disposed of, the
proper object of her bounty, and thecharacter of the testamentary act . . . The will
itself shows that the testatrix even had detailed knowledge of the nature of her
estate. She even identified the lot number and square meters of the lots she had
conveyed by will. The objects of her bounty were likewise identified explicitly.
And considering that she had even written a nursing book which contained the

law and jurisprudence on will and succession, there is more than sufficient
showing that she knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the allowance
of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said will was
procured by undue and improper pressure and influence on the part of the
beneficiary or of some other person, the evidence adduced have not shown any
instance where improper pressure or influence was exerted on the testatrix.
(Private respondent) Clemente Sand has testified that the testatrix was still alert
at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her independence of character and
to some extent, her sense of superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession
that in case of doubt, testate succession should be preferred over intestate
succession, and the fact that no convincing grounds were presented and proven
for the disallowance of the holographic will of the late Annie Sand, the aforesaid
will submitted herein must be admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements
for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New
Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature and date,
such date validates the dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic
will, the testator must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed
but not dated. It also found that the erasures, alterations and cancellations made thereon had
not been authenticated by decedent.
Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at
the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part
of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature
thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to
admit a holographic will to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was
executed in accordance with the formalities prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was executed; and, (4) whether the
execution of the will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814
of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said
will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), 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. 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 last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement
that they be totally autographic or handwritten by the testator himself, 7 as provided under Article
810 of the New Civil Code, thus:
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. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of
the dispositions contained in the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance
with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984),
this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will have 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. Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date
of the holographic will or on testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and
dating of dispositions appear in provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the holographic will (Article 810). The
distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself in the form
and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding
to the year of its execution, written in its entirety by the testator and signed by
him, and must contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must
identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same
Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the
house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must
be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and pass upon certain provisions of
the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor
Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with
respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del
Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie
Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran
property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Republic of the Philippines


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

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir
of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound
and disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named provide and
erect at the expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole
heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in
substance, that the holographic Will contained alterations, corrections, and insertions without
the proper authentication by the full signature of the testatrix as required by Article 814 of the
Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in
part:
The document Exhibit "C" was submitted to the National Bureau of Investigation
for examination. The NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of the decedent,
Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be
admitted to probate although the alterations and/or insertions or additions abovementioned 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.

4. Gan v. Yap compare to Rodelas v. Aranza


epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.


GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the deceased,
substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na
ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamag-anakang sumusunod:
Vicente Esguerra, Sr.
.............................................

5 Bahagi

Fausto E. Gan
.........................................................

2 Bahagi

Rosario E. Gan
.........................................................

2 Bahagi

Filomena Alto
..........................................................

1 Bahagi

Beatriz Alto
..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking


ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa
ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa

bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At


kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by
the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated
by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in
the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad
wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the
afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason
of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians,
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed
to the United States wherein for several weeks she was treated for the disease; that thereafter
she felt well and after visiting interesting places, the couple returned to this country in August
1950. However, her ailment recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying

the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head
held high by her husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her husband and her personal
attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important
of which were these: (a) if according to his evidence, the decedent wanted to keep her will a
secret, so that her husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is improbable that the
decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it
is also improbable that her purpose being to conceal the will from her husband she would carry
it around, even to the hospital, in her purse which could for one reason or another be opened by
her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T.
Hospital and that the will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed behind his back for
fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and
of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or
most of them, were presented in the motion to reconsider; but they failed to induce the court a
quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our opinion the case should
be decided not on the weakness of the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form and may be made in or out of the Philippines,
and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and
three credible witnesses in each andevery page; such witnesses to attest to the number of
sheets used and to the fact that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authencity

(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40
Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances
its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written,
dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose,
regards the document itself as material proof of authenticity, and as its own safeguard, since it
could at any time, be demonstrated to be or not to be in the hands of the testator himself.
"In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least three
such witnesses shall be required. In the absence of any such witnesses, (familiar with
decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted
to."
The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may present other witnesses who
also know the testator's handwriting, or some expert witnesses, who after comparing the will
with other writings or letters of the deceased, have come to the conclusion that such will has not
been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 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 whether in 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 privilege to comply with
the will, if genuine, a right which they should not be denied by withholding inspection thereof
from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of
the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face
of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of
the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it
shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del


articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos
esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en
que el verbo se emplea, se desprende la necesidad de que el documento se
encuentre en dichas condiciones en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado
por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el
perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que
los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion
as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make
this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of
the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and

of the notary, now). The loss of the holographic will entails the loss of the only medium of proof;
if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and
acts on the particular day, the likelihood that they would be called by the testator, their intimacy
with the testator, etc. And if they were intimates or trusted friends of the testator they are not
likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they would
in all good faith affirm its genuineness and authenticity. The will having been lost the forger
may have purposely destroyed it in an "accident" the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court,
nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed decision,
we find it hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from
her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.

Republic of the Philippines


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

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant
to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance
of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc.
No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following
grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing
to produce the will within twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition
of property after death and was not intended to take effect after death, and
therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

The appellees likewise moved for the consolidation of the case with another case
Sp. Proc. No, 8275). Their motion was granted by the court in an order dated
April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court
in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an opposition. On July 23, 1979, the
court set aside its order of February 23, 1979 and dismissed the petition for the
probate of the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in
the matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the
lapse of more than 14 years from the time of the execution of the will to the death
of the decedent, the fact that the original of the will could not be located shows to
our mind that the decedent had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the following
assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC
WILL MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness
is required and, if no witness is available, experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and only evidence
is the handwriting of the testator in said will. It is necessary that there be a comparison between
sample handwritten statements of the testator and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved
by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the
lost or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion
for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her
petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

5. Balonan v. Abellana compare to Guison v. Concepcion


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased


ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate
the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals
where the following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with law; and in admitting the will to
probate.
In view of the fact that the appeal involves a question of law the said court has certified the case
to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and
under his name appears typewritten "Por la testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second
page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino
Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los
Santos and below his signature is his official designation as the notary public who
notarized the said testament. On the first page on the left margin of the said instrument
also appear the signatures of the instrumental witnesses. On the second page, which is
the last page of said last Will and Testament, also appears the signature of the three (3)
instrumental witnesses and on that second page on the left margin appears the
signature of Juan Bello under whose name appears handwritten the following phrase,
"Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary
Public Attorney Timoteo de los Santos. (Emphasis supplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello
above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de
Zamboanga," comply with the requirements of law prescribing the manner in which a will shall
be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
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
witness in the presence of the testator and of one another. (Emphasis supplied.)
The clause "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," is practically
the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which
reads as follows:
No will, except as provided in the preceding section shall be valid to pass any estate,
real or personal, nor charge or affect the same, unless it be in writing and signed by the
testator, 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 each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the testator himself sign the will, or if he
cannot do so, the testator's name must be written by some other person in his presence and by
his express direction. Applying this provision this Court said in the case of Ex Parte Pedro
Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that
where the testator does not know how, or is unable, to sign, it will not be sufficient that
one of the attesting witnesses signs the will at the testator's request, the notary certifying
thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified
by section 618 above referred to, but it is necessary that the testator's name be written
by the person signing in his stead in the place where he could have signed if he knew
how or was able to do so, and this in the testator's presence and by his express
direction; so that a will signed in a manner different than that prescribed by law shall not
be valid and will not be allowed to be probated.
Where a testator does not know how, or is unable for any reason, to sign the will himself,
it shall be signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe,
Richard Doe." All this must be written by the witness signing at the request of the
testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at
the bottom of the will the full name of the testator and his own name in one forms given
above. He did not do so, however, and this is failure to comply with the law is a
substantial defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears
that the name of the testatrix was signed at her express direction; it is unimportant whether the
person who writes the name of the testatrix signs his own or not. Cases of the same import
areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under
the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply
with the express requirement in the law that the testator must himself sign the will, or that his
name be affixed thereto by some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained
to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate
of the will denied. With costs against petitioner.
Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon,
JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 2586

January 19, 1906

TOMAS GUISON, petitioner-appellant,


vs.
MARIA CONCEPCION, respondent-appellee.
Teodoro Gonzalez for appellant.
Gabriel and Borbon for appellee.
WILLARD, J.:
Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The last part of the
will is as follows:
Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y Felix
Polintan, de Manila, Islas Filipinas, y por no yo poder firmar, firma a mi ruego el mismo
Feliciano Maglaqui, en mi presencia y de los mencionados testigos, quienes tambien
suscriben, cada uno de ellos en presencia de los otros y la mia.
(Firmado) FELICIANO MAGLAQUI.
(Firmado) AMBROSIO REYES.
(Firmado) MARIANO DE LEON.
(Firmado) FELIX POLINTAN.
Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que
Feliciano Maglaqui, a ruego de la Sra. Jacoba Concepcion Salcedo y en presencia de la
misma y la nuestra, firmo el testamento que antecede; y que cada uno de nosotros lo
firmo en presencia de los otros y de dicha testadora.
Manila, tres de Enero de mil novecientos cuatro.
(Firmado) AMBROSIO REYES.
(Firmado) MARIANO DE LEON.
(Firmado) FELIX POLINTAN.
It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on
the will, wrote his own. Probate of the will was refused in the court below on the ground that the
name of the testatrix was not signed thereto, and the petitioner has appealed. The question
presented has been decided adversely to the appellant in the following cases: Ex parte Pedro
Arcenas et al.,1 No. 1708, August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio Delfin
Santiago,2 No. 2002, August 18, 1905 (4 Off. Gaz., 507.)

The judgment of the court below is affirmed, with the costs of this instance against the appellant,
and after the expiration of twenty days judgment should be entered in accordance herewith and
the case remanded to the court below for execution. So ordered.
Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur.

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