Art. 805

SUCCESSION: ART.
805
G.R. No. L-13431
November 12, 1919
In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate
Ana Abangan's will executed July, 1916. From this decision the opponent's
appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the
first of which contains all of the disposition of the testatrix, duly signed at the
bottom by Martin Montalban (in the name and under the direction of the testatrix)
and by three witnesses. The following sheet contains only the attestation clause
duly signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to appellants' contention,
are defects whereby the probate of the will should have been denied. We are of
the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the
left margin by the testator and three witnesses in the presence of each other,
Act No. 2645 (which is the one applicable in the case) evidently has for its object
(referring to the body of the will itself) to avoid the substitution of any of said
sheets, thereby changing the testator's dispositions. But when these dispositions
are wholly written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case), their signatures on the left margin of said
sheet would be completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly, the case of a will
written on several sheets and must have referred to the sheets which the
testator and the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this sheet, already
signed at the bottom, be signed twice. We cannot attribute to the statute such an
intention. As these signatures must be written by the testator and the witnesses
in the presence of each other, it appears that, if the signatures at the bottom of
the sheet guaranties its authenticity, another signature on its left margin would
be unneccessary; and if they do not guaranty, same signatures, affixed on
another part of same sheet, would add nothing. We cannot assume that the
statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of
Act No. 2645 is to know whether any sheet of the will has been removed. But,
when all the dispositive parts of a will are written on one sheet only, the object of
the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the will, we
hold that in the one accompanying the will in question, the signatures of the
testatrix and of the three witnesses on the margin and the numbering of the
pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies, appertains
only to the witnesses and not to the testator since the latter does not attest, but
executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first
of which contains all the testamentary dispositions and is signed at the bottom
by the testator and three witnesses and the second contains only the attestation
clause and is signed also at the bottom by the three witnesses, it is not
necessary that both sheets be further signed on their margins by the testator
and the witnesses, or be paged.
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 primordal 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 frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance
appearing in the will itself that same was executed in the city of Cebu and in the
dialect of this locality where the testatrix was a neighbor is enough, in the
SUCCESSION: ART. 805
absence of any proof to the contrary, to presume that she knew this dialect in
which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur
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
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.
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.
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.
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
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.
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
1
Barut and another, No. 6284, just 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.
G.R. No. L-20475
March 19, 1924
In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-appellant.

C.K. Langleon for petitioner and appellant.
ARAULLO, C.J.:
On March 3, 1921, Mamerta Base instituted this proceeding in the Court of First
Instance of Leyte for the probate of the will, Exhibit A, executed, according to
her, by the Chinaman Tan Diuco, a resident of the municipality of Malitbog of
said province, who died on December 8, 1920. That court denied the probate of
the will on November 2, 1922, and the petitioner brought the case on appeal to
this court, alleging that the lower court erred in holding that said will was not
signed by three instrumental witnesses and in not allowing it to probate.
After a hearing on the petition, the Court of First Instance entered the order
appealed from, in which it is found that said will was executed with all the
solemnities prescribed by Act No. 2645, except that it was not signed by three
instrumental witnesses beside the signature of the testator and before the
attestation clause, and this fact is the ground upon which the petition was
denied.
The document in question, Exhibit A, appears to have been signed by Simplicio
Sala by order of the testator, whose name is before the said signature, by
reason of the latter's incapacity on account of his weakness and the trembling of
his hand, the testator also stating that he directed said Simplicio Sala to sign it in
his name and in the presence of three witnesses who also signed with him at the
bottom of said document, and on the left margin of each of its three pages
correlatively numbered in letters by Sala in the name of the testator Tan Diuco
and by the witnesses therein mentioned, named Pablo Maturan, Ladislao
Fenomeno, and Enrique Pearedondo. After the signature of the testator, Tan
Diuco by Simplicio Sala, the following paragraph appears:
We, the undersigned witnesses to the forgoing will, do hereby state that
the testator signed this will and each of its sheets in the presence of all
and each of us, and we and each of us likewise did sign this will and all
of its sheets in the presence of the testator and each of us, witnesses.
"TAN DIUCO
By "SIMPLICIO SALA
"LADISLAO FENOMENO
"PABLO MATURAN
"ENRIQUE PEAREDONDO"
Section 618 of the Code of Civil Procedure, as amended by Act No. 2645,
provides, indeed, among the necessary requirements before a will can be
probated, that it be attested and signed by three or more credible witnesses in
the presence of the testator and of each other. And said section, as amended,
further provides as follows:
* * * The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet.
The attestation shall state the number of sheets or pages used, upon
which the will is written, and that fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
Instrumental witness, as defined by Escriche in his Diccionario Razonado de
Legislacion y Jurisprudencia, volume 4, page 1115, is one who takes part in the
execution of an instrument or writing.
At present and under the laws now in force, particularly Act No. 2645
amendatory to said section 618 of the Code of Civil Procedure, when a will is to
be executed, the testator draws or writes it personally or through another person
and signs it also personally, or if he is physically incapacitated, as in the instant
case, through another person who may or may not be the one who prepared or
wrote the will, that is, the document constituting the testator's last will and
testament. The will having thus been prepared and before it is signed by the
testator or the person acting in his stead, or the one directed by him to sign it in
his name, in which case the name of the testator is written before that of the
signer, as above stated, in order that said document may have the character of
a valid will, the testator gathers three or more credible witnesses and tells them
that the contents of said document is his will, without informing them of its
contents, and then the testator, or the person directed by him to do so, signs it in
the presence of the testator and of each other, and the testator or the person
acting in his stead, as well as the three witnesses sign on the left margin of each
page or sheet, which must be numbered correlatively in letters on the upper part
of the page. These witnesses are the witnesses, referred to in the aforesaid law
as instrumental witnesses, for the simple reason that they took part in the
execution of an instrument or document known as will, their participation being
limited to the acts aforementioned.
In dealing with attestation, said section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, does not say that said witnesses must be different
from those who signed the attestation clause, for in the first part of said section,
after speaking of the signature of the testator or the person signing in his place,
it adds, "and attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other," from which it clearly follows that the
same witnesses who signed on the left margin of each page of the document
presented by the testator to them as his will, must be the ones who should sign
the attestation clause, inasmuch as they alone can certify the facts to be stated
in said clause, for having taken a direct part therein, as they saw the testator
sign the will, or the person requested by him to sign all the sheets of the will, that
is, the document constituting his last will and testament, and affirm that it was
signed under his express direction in the presence of said witnesses and that all
the sheets thereof had also been signed by them in the presence of said testator
and of each of them, as stated in the attestation clause of the will of the
deceased Tan Diuco, with the other details appropriate in said clause.
Besides, as may be seen, the said three witnesses who signed the attestation
clause, did so also on the left margin and beside the signature of the testator or
of Simplicio Sala who signed by order of the latter, and if account is taken of the
fact that these witnesses are "instrumental" witnesses, as above demonstrated,
and they have made reference to their own signatures, as well as that of the
testator and of the person who signed by the latter's order below the attestation
clause, it is evident that in the instant case, it is merely a matter of technicality
devoid of any importance as to the probate of the will that said witnesses are
called instrumental witnesses, as if they were different from those who have to
sign the attestation clause, for all of them are but the same witnesses; and, as
this court held in the case of Abangan vs. Abangan (40 Phil., 476), "The object
of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these primordial ends. 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 a
interpretation already given assures such ends, any other interpretation
unnecessary, useless and frustative of the testator's last will, must be
disregarded;" which doctrine must be applied in this case, in view of the facts
herein mentioned and what has been above demonstrated.
For all of the foregoing, the order appealed from is reversed, and the document,
Exhibit A, presented by the proponent as the last will and testament of the
deceased Tan Diuco is admitted to probate, without special finding as to costs of
both instances. So ordered.
Johnson, Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ.,
concur.
G.R. No. L-9150
March 31, 1915
MARIANO LEAO, petitioner-appellant,

vs.
ARCADIO LEAO, objector-appellee.
Vicente Llanes for appellant.
Severo Hernando for appellee.
CARSON, J.:
The evidence of record satisfactorily discloses that Cristina Valdes, deceased,
placed her costs against her name, attached by some other person to the
instrument offered for probate which purports to be her last will and testament, in
the presence of three witnesses whose names are attached to the attesting
clause, and that they attested and subscribed the instrument in her presence
and in the presence of each other.
We are of the opinion that the placing of the cross opposite her name at the
construction of the instrument was a sufficient compliance with the requirements
of section 618 of the Code of Civil Procedure, which prescribes that except
where wills are signed by some other person than the testator in the manner and
from herein indicated, a valid will must be signed by the testator. The right of a
testator to sign his will by mark, executed animo testandi has been uniformly
sustained by the courts of last resort of the United States in construing statutory
provisions prescribing the mode of execution of wills in language identical with,
or substantially similar to that found in section 618 of our code, which was taken
from section 2349 of the Code of Vermont. (Page on Wills, par. 173, and the
cases there cited in support of the doctrine just announced.)
The trial judge was of contrary opinion, and declined to admit the instrument to
probate as the last will and testament of the decedent. We are of opinion,
however, that the evidence of record satisfactorily establishes the execution of
that instrument as and for her last will and testament in the manner and form
prescribed by law.
The judgment entered in the court below should therefore be reversed, without
costs in this instance, and the record remanded to the court below, where
judgment will be entered admitting the instrument in question to probate in
accordance with the prayer of the petitioner. So ordered.
Arellano, C.J. and Araullo, J., concur.
Moreland, J., concurs in the result.
10
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
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.
(Sgd.) "ROSENDA CORTES

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
(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
11
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
12
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.
13
G.R. No. L-3907
March 12, 1908
ROMAN ABAYA, petitioner-appellant,

vs.
DONATA ZALAMERO, respondent-appellee.
L. Joaquin for appellant.
Escueta and Lim for appellee.
TORRES, J.:
On the 6th of August, Roman Abaya filed a petition with the Court of First
Instance of La Laguna, for the allowance of the will executed by Juan Zalamero,
a resident of Pagsanhan, in said province, on the 29th of October, 1905, and
produced in court the said will, which was written in Tagalog dialect. Donata
Zalamero opposed the petition, alleging that the will had been executed under
pressure and unlawful and improper influence on the part of those who were to
benefit thereby, and that it had not been executed and signed in accordance
with the provisions of section 618 of the Code of Civil Procedure. A day was
appointed for the hearing and in the course of the proceedings the witnesses
offered by both parties were examined; on the 10th of January, 1907, the court
refused to admit the will of said Juan Zalamero, as requested by Roman Abaya;
Abaya appealed from the decision and moved for a new trial which motion has
not been finally acted upon by the court; for this reason the petitioner, now
before this court, still insists thereon for the effects of the appeal which he had
interposed, and has submitted a certified copy of the proceedings to which the
assignment of errors presented by him refers.
Two points are presented. The first is, that Juan Zalamero, while in life,
executed his will on the 29th of October, 1905, under lawful pressure and
influence exercised by those who were thereby benefited; and second, that the
said will was not executed and signed in accordance with the provisions of
section 618 of the Code of Civil Procedure.
After an examination of the facts alleged and the evidence adduced by both
parties, and considering the case according to the rules of common sense and
sound criticism, it must necessarily be admitted that the weight and
preponderance of the evidence prove in a conclusive manner the authenticity
and genuineness of the said will as the real and true expression of the will of the
testator, Juan Zalamero, and for this reason the first point should have been
decided by the court below in a negative sense.
It was not expressly pretended that the said will should be disallowed under the
provisions of section 634 of the Code of Civil Procedure, either because the
testator was insane or otherwise mentally incapable to execute such instrument

at the time of its execution, or because it was procured by undue and improper
pressure and influence on the part of the beneficiaries; nor even if such request
had been made, could the nullity of the said will have been judicially declared in
view of the lack of satisfactory proof of the presence of such circumstances.
Therefore, the court, in order to disallow the petition, had to disregard them and
rest the decision upon the allegation that the will was not executed in
accordance with the provisions of section 618 of the Code of Civil Procedure.
Notwithstanding the reasons stated in the judgment appealed from, it appears
that the will in question was executed with the requirements established by the
law in force, and that, therefore, the decision upon the second point should be
against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for the reasons set forth by
the testator and at his own request, one of the witnesses to the will, Mariano
Zaguirre, wrote with his own hand the name and surname of Juan Zalamero, the
testator, and his presence, and that the latter put a cross between them and a
note stating that what had been written before the name and surname of the
said Juan Zalamero, with the cross placed at the foot thereof, was his testament
and contained his last will as stated by him when he directed the execution
thereof in the presence of the three witnesses who subscribed it in his presence,
and in the presence of each other.
It is true that the witness Mariano Zaguirre, who was requested by the testator to
write his name and surname at the end of his will, did not affix his own signature
immediately below the name and surname of Juan Zalamero and below the
cross placed by the latter with the words "by request of the testator Juan
Zalamero;" but in the said will are clearly stated the reason why it was not
signed by the testator himself as also the request he made to the witness
Zaguirre, and a repetition thereof was not necessary; further, that this same
witness, upon being requested, wrote with his own hand the name and surname
of the testator, who afterwards placed the cross between them, stating that it
was his statement, all of which was written immediately after the said name and
surname of the testator and the cross made by him, and the same was
subscribed by the three witnesses in the manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the
law have been complied with, namely, that three witnesses were present at the
execution of the will of Juan Zalamero at the date mentioned therein; that they
heard his statement that the said instrument, written and drawn up under his
direction, contained his last will; that they saw and witnessed when, at the
express request of the testator, and under his direction, the witness, Mariano
Zaguirre, wrote at the foot of the will the name and surname of Juan Zalamero,
14
and when the latter put the cross between his written name and surname, each
of the witnesses subscribing it at the time and in the presence of each other.
For the reasons hereinbefore set forth it is our opinion that the judgment
appealed from should be reversed and that it be declared, as we now do, that
the will executed by the late Juan Zalamero while in life, under date of the 29th
of October, 1905, was executed in accordance with the law, and that therefore it
should be duly admitted in order that it may produce all consequent legal effects,
and it is so ordered without any special ruling as to costs.
Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.
15
G.R. No. 1641
January 19, 1906
GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
1641
Explain this contradictory statement.
A.
1641 After I signed I asked permission to leave, because I was
in a hurry, and while I was leaving Julio had already taken the pen in his
hand, as it appeared, for the purpose of signing, and when I was near
the door I happened to turn my face and I saw that he had his hand with
the pen resting on the will, moving it as if for the purpose of signing.
Q.
1641
State positively whether Julio moved his hand with the
pen as if for the purpose of signing, or whether he was signing
CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the
evidence adduced at the hearing that Julio Javellana, one of the witnesses, did
not attach his signature thereto in the presence of Isabelo Jena, another of the
witnesses, as required by the provisions of section 618 of the Code of Civil
Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q.
1641
Who first signed the will?
A.
1641
I signed it first, and afterwards Aniceto and the others.
Q.
1641
Who were those others to whom you have just referred?
A.
1641
After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw
Julio Javellana with the pen in his hand in position ready to sign (en
actitud de firmar). I believe he signed, because he was at the table. . . .
Q.
1641
State positively whether Julio Javellana did or did not
sign as a witness to the will.
A.
1641 I can't say certainly, because as I was leaving the house I
saw Julio Javellana with the pen in his hand, in position ready to sign. I
believe he signed.
Q.
Q.
1641
Why do you believe Julio Javellana signed?
A.
1641
Because he had the pen in his hand, which was resting
on the paper, though I did not actually see him sign.
A.
I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem to have
been questioned by any of the parties to the proceedings, but the court,
nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under
the following circumstances the document in question, which has been
presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he
ordered that the document in question be written, and calling Julio
Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed
the said document as his will. They were all together, and were in the
room where Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at his request,
and in his presence and in the presence of the other two witnesses.
Aniceto Jalbuena then signed as a witness in the presence of the
testator, and in the presence of the other two persons who signed as
witnesses. At that moment Isabelo Jena, being in a hurry to leave, took
his hat and left the room. As he was leaving the house Julio Javellana
took the pen in his hand and put himself in position to sign the will as a
witness, but did not sign in the presence of Isabelo Jena; but
nevertheless, after Jena had left the room the said Julio Javellana
signed as a witness in the presence of the testator and of the witness
Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the
signature of Javellana was not signed in the presence of Jena, in compliance
with the provisions of section 618 of the Code of Civil Procedure. The fact that
Jena was still in the room when he saw Javellana moving his hand and pen in
the act of affixing his signature to the will, taken together with the testimony of
the remaining witnesses which shows that Javellana did in fact there and then
16
sign his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving, and that his back
was turned while a portion of the name of the witness was being written, is of no
importance. He, with the other witnesses and the testator, had assembled for
the purpose of executing the testament, and were together in the same room for
that purpose, and at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with
relation to Javellana that he could see everything which took place by merely
casting his eyes in the proper direction, and without any physical obstruction to
prevent his doing so, therefore we are of opinion that the document was in fact
signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the
presence of the testator is said to be that the testator may have ocular
evidence of the identity of the instrument subscribed by the witness and
himself, and the generally accepted tests of presence are vision and
mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and
cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if
the witnesses are together for the purpose of witnessing the execution of the
will, and in a position to actually see the testator write, if they choose to do so;
and there are many cases which lay down the rule that the true test of vision is
not whether the testator actually saw the witness sign, but whether he might
have seen him sign, considering his mental and physical condition and position
at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between
the testator and the witnesses are equally applicable in determining whether the
witnesses signed the instrument in the presence of each other, as required by
the statute, and applying them to the facts proven in these proceedings we are
of opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on
the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in
these proceedings was satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should therefore be admitted to
probate.
The judgment of the trial court is reversed, without especial condemnation of
costs, and after twenty days the record will be returned to the court form whence
it came, where the proper orders will be entered in conformance herewith. So
ordered.
Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.
17
G.R. No. L-5971
February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of
the instrument propounded as a will in the court below, is whether one of the
subscribing witnesses was present in the small room where it was executed at
the time when the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or ten feet away,
in a large room connecting with the smaller room by a doorway, across which
was hung a curtain which made it impossible for one in the outside room to see
the testator and the other subscribing witnesses in the act of attaching their
signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness
was in the small room with the testator and the other subscribing witnesses at
the time when they attached their signatures to the instrument, and this finding,
of course, disposes of the appeal and necessitates the affirmance of the decree
admitting the document to probate as the last will and testament of the
deceased.
The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he was
of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo
(5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in
the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself
to invalidate the execution of the will. But we are unanimously of opinion that
had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their
signatures to the instrument in the inner room, it would have been invalid as a
will, the attaching of those signatures under circumstances not being done "in
the presence" of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner from the
outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but
whether they might have been seen each other sign, had they chosen to
do so, considering their mental and physical condition and position with
relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be such
that they may see each other sign if they choose to do so. This, of course, does
not mean that the testator and the subscribing witnesses may be held to have
executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the case
relied upon by the trial judge discloses that "at the moment when the witness
Javellana signed the document he was actually and physically present and in
such position with relation to Jaboneta that he could see everything that took
place by merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so." And the decision merely laid down the
doctrine that the question whether the testator and the subscribing witnesses to
an alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon the paper
at the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such that
by merely casting the eyes in the proper direction they could have seen each
other sign. To extend the doctrine further would open the door to the possibility
of all manner of fraud, substitution, and the like, and would defeat the purpose
for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded
therein to probate as the last will and testament of Pedro Rimando, deceased, is
affirmed with costs of this instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
18
G.R. No. L-23225
February 27, 1971
this Court, considering that such explanation would amount to new evidence not
heard at the trial, denied the motion on 3 August 1967. 5
IN THE MATTER OF THE PETITION TO PROBATE OF THE WILL OF DIGNA

MARAVILLA, HERMINIO MARAVILLA, petitioner-appellant, and ADELINA
SAJO, legatee-appellant, v. PEDRO MARAVILLA, ASUNCION MARAVILLA
and REGINA MARAVILLA, oppositors-appellees, CONCEPCION
KOHLHAAS and ROSE MARY KOHLHAAS, intervenors.
Herminio Maravillas petition for probate was opposed by the appellees in an

amended opposition filed in the course of the trial in the court below and
admitted without objection. The opposition alleged the following grounds:
Felino A. Garcia for legatee-appellant.
"a) That the deceased, Digna Maravilla, the alleged testatrix and the
instrumental witnesses did not sign the alleged will, each and every page
thereof, in the presence of each other;
Salonga, Ordoez, Yap, Sicat & Associates and Paredes, Poblador, Cruz &
Nazareno for Petitioner-Appellant.
Jose Gutierrez David, Placido C. Ramos, Augurio Abeto, Alex Mirasol and
Alex Umadhay, for oppositors-appellees.
"b) That the deceased, Digna Maravilla, the alleged testatrix, affixed her
signature to her alleged will under undue and improper pressure and influence
and/or duress brought to bear upon her by the petitioner, for his own personal
benefit and advantage and that of his nieces, Adelina Sajo and Rose Marie
Kohlhaas and his half-sister Conchita Maravilla Kohlhaas;
Jose M. Luison for intervenors.

DECISION
REYES, J.B.L., J.:
These are appeals (before Republic Act 5440) from the decision of the Court of
First Instance of Negros Occidental, in its Special Proceeding No. 4977, denying
the probate of the will of the deceased, Digna Maravilla. These appeals were
brought to the Court of Appeals, but said court certified the same to this
Supreme Court on 26 May 1964, in accord with the latters prior decision in
Fernandez, etc., Et. Al. v. Maravilla, L-18799, 31 March 1964, 1 which settled
the question of appellate jurisdiction in favor of the Supreme Court over that of
the Court of Appeals, on the appeal from the appointment of a special coadministrator in the same Special Proceeding No. 4977 in view of the value of
the estate.
Appellant Herminio Maravilla, probate petitioner and husband of the decedent,
died on 16 July 1966, after the case was submitted for decision. Upon motion for
intervention filed by Concepcion Maravilla Kohlhaas and Rose Mary Kohlhaas,
this Supreme Court allowed their intervention on 24 July 1967, upon showing
that their interest as substitute heirs was vested definitely upon the death of
Herminio Maravilla, and that said movants for intervention merely adopt the
pleadings and briefs filed in behalf of the deceased Herminio Maravilla so that
the intervention will not delay the disposition of the case. 2
Appellees Pedro, 3 Asuncion and Regina, all surnamed "Maravilla," who are
allegedly the brother and sisters of the deceased Digna Maravilla and oppositors
to the probate, had moved to require the P. C. Laboratory to submit explanations
of the photographs of the will and the signatures thereon previously filed, 4 but
"c) That the deceased, Digna Maravilla, at the time she affixed her signature to
her alleged will was not of sound and disposing mind;
"d) That the alleged will, now being offered for probate had already been
revoked by the deceased, Digna Maravilla." 6
After trial, the court below rendered judgment, holding as unsubstantiated the
last three (3) grounds above-enumerated, but sustaining the first, that is, that the
will was not executed in accordance with Section 618 of Act 190, and, therefore,
denied the probate of the will.
The petitioner and one Adelina Sajro, who was named a devisee under the
questioned will, appealed the judgment, as aforesaid, assigning errors of fact
and law. The oppositors-appellees did not appeal but counter-assigned errors
their brief.
There is no controversy that the late Digna Maravilla died in Manapla, Negros
Occidental, on 12 August 1958, leaving an extensive estate. Prior to her death,
she was a resident of Saravia, same province. It is, likewise, undisputed that, at
the time of the probate proceedings, only one (1) (Aquilino Mansueto) of the
three (3) attesting witnesses to the will had survived, the two (2) others (Timoteo
Hernaez and Mariano Buenaflor) having died previously.
The will submitted for probate, Exhibit "A," which is typewritten in the Spanish
language, purports to have been executed in Manila on the 7th day of October,
1944; it consists of five (5) pages, including the page on which the attestation
clause was completed. The purported signatures of the testatrix appear at the
logical end of the will on page four and at the left margin of all the other pages.
The attestation clause reads as follows:
19
"CLAUSULA DE ATESTIGUAMIENTO
"Nosotros, TIMOTEO HERNAEZ, AQUILINO MANSUETO y MARIANO
BUENAFLOR los abajo firmantes todos mayores de edad y sin impedimento
alguno para ser testigo de este testamento, certificamos y atestiguamos: Que
en la fecha y lugar arriba mencionados Da. DIGNA MARAVILLA ha otorgado el
presente documento como su testamento y ultima voluntad que consta de cinco
paginas utiles incluyendo esta pagina de atestiguamiento, escrito a maquinilla
en una sola cara de cada hoja, todas paginadas correlativamente en letras de
puo y letra de la testadora, habiendo dicha testadora, despues de leido el
mismo en nuestra presencia, firmado por triplicado al pie de este testamento y
al margen izquierdo de cada una de las cinco paginas de que se compone en
presencia de todos y cada uno de nosotros que tambien firmamos en el margen
izquierdo de cada pagina y al pie de este atestiguamiento los unos en presencia
de los otros y todos en presencia de lo testadora, quien en el acto del
otorgamiento y firma de este documento se halla en plena capacidad intelectual,
amenazada ni enganada par otorgar y firmar este testamento.
"Asi lo atestiguamos y firmamos por triplicado de nuestro puo y letra en Manila
hoy a siete de Octubre de mil novecientos cuarenta y cuatro."
At the bottom thereof appear the purported signatures of Timoteo Hernaez,
Aquilino Mansueto and Mariano Buenaflor, attesting witnesses. Their signatures
appear also on the left margin of all the five (5) pages. The paging of the will is
by handwritten words, such as "Pagina Primera," "Pagina Segunda," etc.,
written at the top of each page. On the lower half of the third page, before the
name "CONCEPCION P. MARAVILLA," is the typewritten word "hermana,"
which was crossed out, and over it was handwritten the word "cuada," bearing,
at the left hereof, the initials "D. M."
testimony of attorney Manuel Villanueva on the due execution of Digna

Maravillas testament was biased and not deserving of credit; and (e) in refusing
probate to the alleged will for not having been executed with the requisites
prescribed by Section 618 of Act 190.
At the hearing before the court a quo, only one of the three instrumental
witnesses, Col. (ret.) Aquilino Mansueto, appeared and testified, inasmuch as
the other two witnesses (Timoteo Hernaez and Mariano Buenaflor) concededly
died prior to the trial of the case. Col. Mansueto identified his own signature and
those of Dr. Timoteo Hernaez and of Digna Maravilla, and asserted that the
latter did sign in the presence of all three witnesses and attorney Villanueva; 7
that Hernaez signed in his presence and in the presence of the other witnesses
and of Digna Maravilla and that present at the signing were "Dr. Timoteo
Hernaez, Mr. Mariano Buenaflor, attorney Manuel Villanueva and both Herminio
Maravilla and Mrs. Digna Maravilla, (the testatrix) and identified his signature
and those of Digna and Hernaez 8 although, subsequently, the witness admitted
that he could not remember very well whether Mr. Maravilla was there at the
time he signed the will. The witness explained that he could not remember some
details because fourteen years had elapsed, and when he signed as a witness,
he did not give it any importance and because of the time he (Col. Mansueto)
was very worried because of rumours that the Japanese Kempeitai would arrest
officers of the USAFFE who did not want to collaborate. 9
After the legacies in favor of herein appellant Adelina Sajo, a niece of Digna
Maravilla, the latters sister-in-law, Concepcion P. Maravilla de Kohlhaas, and
Concepcions daughter, Rose Mary Kohlhaas, the will named appellant Herminio
Maravilla as universal heir and executor. In case of the heirs death, or if he
should not become heir for any reason, he is to be substituted by the legatee
Adelina Sajo in one-half of the properties bequeathed, the other half to pass
collectively to legatees Concepcion P. Maravilla and the daughter of the latter,
Rose Mary Kohlhaas. All previous wills are declared revoked.
Colonel Mansuetos testimony was supported by that of the husband of the

testatrix, Herminio Maravilla, and of attorney Manuel Villanueva. Herminio
Maravillas evidence is that a week before 7 October 1944 his wife, Digna
Maravilla, told him of her desire to "renew" her will because of the critical period
in Manila before the liberation; 10 he invited Buenaflor, Hernaez and Mansueto
to attest to the will; 11 sent his messenger, Mariano Buenaflor, to ask attorney
Manuel Villanueva to come to his house at Mabini, Ermita, Manila, in order to
prepare the will; 12 at his wifes request, he gave the list of properties to
Villanueva; 13 he knew that the will was executed in the dining room while he
remained in the sala; 14 and Villanueva, Mansueto, Hernaez and Buenaflor
were in his house in the morning of 7 October 1944 and sat with his wife around
the table in the dining room, with Villanueva at one end, Digna beside him and
the witnesses facing each other; 15 and after the signing they had lunch, at his
invitation, and when they were eating, petitioner Maravilla saw the three (3)
copies of the will on the dining table. 16 However, he did not see there sign. 17
In view of the trial courts decision of 8 February 1960 (Record on Appeal, pages
25-51) refusing probate of the will, the instituted heir, Herminio Maravilla, and
the legatee, Adelina Sajo, perfected their appeal, assigning as errors the
findings of the trial court that (a) instrumental witness Aquilino Mansueto did not
actually see Digna Maravilla sign the will; (b) that Digna Maravilla was not
present when Mansueto signed the will as witness; (c) that Mansueto "most
probably" did not see Mariano Buenaflor sign as witness to the will; (d) the
Attorney Manuel Villanueva, as third witness for the proponent asserted that he
had been the lawyer of the Maravillas; that 5 or 6 days before 7 October 1944
he had been summoned through Mariano Buenaflor to the house of the
Maravillas at 222 Mabini, Ermita, Manila, and there met Digna who requested
him to draft a new will, revoking her old one, to include as additional
beneficiaries Adelina Sajo, Concepcion Maravilla, and the latters youngest
daughter, Rose Mary Kohlhaas, who lived with her (Digna) and whom she
20
considered as her real children, having cared for them since childhood. Digna
gave Villanueva instructions concerning the will, and handed him her old will and
a handwritten list of the certificates of title of her properties, which list she asked
and obtained from her husband. Before leaving, Villanueva asked Digna to look
for three witnesses; their names were furnished him two or three days later and
he sent word that the will could be executed on 7 October 1944 (as it actually
was); on that day he brought one original and 2 copies with him, and handed
them to Digna; she read the document and while doing so the witnesses
Mansueto, Hernaez and Buenaflor came. Villanueva talked with them and
satisfied himself that they were competent, whereupon all proceeded to the
dining room table. Attorney Villanueva sat at the head thereof, Digna at his right,
and Hernaez at the right of Digna; at his left was first Mansueto and then
Buenaflor. At the lawyers behest Digna Maravilla read the will in the presence of
the witnesses; after reading she called his attention to a clerical error on page 3,
at the second to the last line of paragraph 9, where Concepcion Maravilla was
designated as "hermana" ; the word was cancelled by the testatrix who wrote
"cuada" above the cancelled word, and placed her initials "D. M." beside it. She
also wrote on top of each page the words "Pagina primera," "Pagina Segunda"
and so on, upon Villanuevas instructions, and then Digna and the witnesses
signed in the presence of one another and of attorney Villanueva. 18 The latter
did not ask the husband (Herminio) to join the group when the will was
executed, and Herminio remained near the window in the sala. 19 Digna
appeared to the witness very healthy and spoke in Spanish intelligently. The
signing ended around 12:30 p.m., and after it all ate lunch. 20
Upon the evidence, the trial judge concluded that Mansueto did not actually see
Digna Maravilla sign the will in question, basing such conclusion upon the fact
that while Mansueto positively identified his own signature ("I identify this as my
signature") but not that of the testatrix, his five answers to the questions of
counsel, in reference thereto, being "this must be the signature of Mrs. Digna
Maravilla."
In our opinion, the trial courts conclusion is far fetched, fanciful and
unwarranted. It was but natural that witness Mansueto should be positive about
his own signature, since he was familiar with it. He had to be less positive about
Digna Maravillas signature since he could not be closely acquainted with the
same: for aught the record shows, the signing of the will was the only occasion
he saw her sign; he had no opportunity to study her signature before or after the
execution of Exhibit "A." Furthermore, he witnessed Dignas signing not less
than fourteen years previously. To demand that in identifying Dignas signature
Mansueto should display a positiveness equal to the certainty shown by him in
recognizing his own, exceeds the bounds of the reasonable. The variation in the
expressions used by the witness is the best evidence that he was being candid
and careful, and it is a clear badge of truthfulness rather than the reverse.
The trial courts error gains no support from Mansuetos statement on cross-
examination that "I remember and (I) signed the will in the presence of all the
witnesses and in the presence of attorney Villanueva" (page 29, Volume 1,
T.s.n., Amago). In the absence of an assurance that no one else was present,
this assertion does not really contradict Mansuetos testimony in chief that "I
have read the entire document before I signed it in the presence of the other
witnesses, Digna Maravilla and Attorney Villanueva" (t.s.n., Amago, Volume 1,
pages 18-19). It is well to note that the cross examiner did not ask Mansueto if
no one else besides those mentioned by him had seen him sign. Any
contradiction inferred from both statements is purely conjectural; it did not come
from the witness and is insufficient to impeach his veracity, the difference in the
answers being due to no more than an accidental lapse of memory. A will may
be allowed even if some witnesses not remember having attested it, if other
evidence satisfactorily show due execution (V. Act 190, Section 632), and that
failure of witness to identify his signature does not bar probate. 21
That Mansueto, Hernaez and Buenaflor, together with the testatrix and the
lawyer, sat next to one another around one table when the will was signed is
clearly established by the uncontradicted testimony of both attorney Villanueva
and Herminio Maravilla; and that detail proves beyond doubt that each one of
the parties concerned did sign in the presence of all the others. It should be
remembered, in this connection, that the test is not whether a witness did see
the signing of the will but whether he was in a position to see if he chose to do
so. 22
The trial court rejected the evidence of both Herminio Maravilla and Manuel
Villanueva, giving as a reason that they were biased and interested in having the
probate succeed. The reasoning is not warranted: for Herminio Maravilla
certainly stood to gain more under the previous will of his wife (Exhibit "G")
where he was made the sole beneficiary, As to attorney Villanueva, while he had
been a friend of Herminio from boyhood, he also had been the family lawyer,
and his intervention in the execution of the will of one of his clients became
inevitable, for it is not to be expected that the testatrix should call upon a
stranger for the purpose. If Villanueva wished to perjure in favor of Herminio, all
he needed was to color his testimony against the due execution of the will
(Exhibit "A") and not in favor thereof, since, as previously observed, Dignas first
will (Exhibit "G") was more advantageous to the widower.
We find it difficult to understand the trial courts distrust of a lawyer who did no
more than discharge his professional duty, or its readiness to attribute improper
motives to proponents witnesses. This Court, in Sotelo v. Luzan, 59 Phil. 908,
has remarked that
"It is hardly conceivable that any attorney of any standing would risk his
professional reputation by falsifying a will and then go before a court and give
false testimony."
And in the Fernandez v. Tantoco, 49 Phil. 380, 385, We ruled:
21
"In weighing the testimony of the attesting witnesses to a will, the statements of
a competent attorney, who has been charged with the responsibility of seeing to
the proper execution of the instrument, is entitled to greater weight than the
testimony of a person casually called to participate in the act, supposing of
course that no motive is revealed that should induce the attorney to prevaricate.
The reason is that the mind of the attorney, being conversant with the requisites
of proper execution of the instrument, is more likely to become fixed on details,
and he is more likely than other persons to retain those incidents in his
memory." (Italics supplied)
Appellees endeavoured to sustain the courts refusal to probate the will by
referring to the evidence of their witness Marino Tupas, a man of "no permanent
job", 23 who narrated that on the last week of September, 1944 one Mariano
Buenaflor had been introduced to him by one Lt. Garaton at his guerrilla outpost
in Montalban and described as a man wanted by the Japanese. Tupas patently
exaggerated testimony is that this Buenaflor stayed with him at his outpost camp
until January, 1945, living and sleeping with him, and was never for a single
moment out of his sight. 24 Why a civilian refugee should remain at a guerrilla
outpost for four months; without engaging in any particular helpful activity on his
part, was not explained. Shown photographs and asked to identify Buenaflor,
Tupas hedged by pleading that the Buenaflor who stayed with him had a long
beard. Thus, oppositor-appellees reverse alibi for the instrumental witness,
Mariano Buenaflor, was not only patently mendacious but did not establish any
reliable connection between the instrumental witness of Dignas will and the
Buenaflor who, according to Tupas, stuck to him as a burr in 1944. No wonder
the trial court gave no credit to such evidence.
Oppositors attempts to establish that the testatrix Digna Maravilla was mentally
incompetent to validly execute the will in question met no better fate in the court
below. They introduced one Eufrocina Berja who qualified Digna Maravilla as
insane because she saw Digna Maravilla acting strangely one morning in 1921
(23 years before the will was executed). In Berjas own words
"Would you not call a person insane who is waving a bunch of flowers and
singing along a road, especially taking into consideration their reputation in the
Community?" (t.s.n., 21 May 1959, page 19)
Even if to this ridiculous appraisal were to be added the fact that (according to
this witness) Digna saw her in 1946, but would not answer her questions and
"was in a deep thought (sic) and her tongue was coming out of her mouth" (Do.,
pages 14-15), her evidence would certainly not justify a finding that Digna
Maravilla was not competent to execute the testament in 1944. By Berjas
standards, any one could be held insane.
Nor is the case for the oppositors improved by the evidence of their witness
Eleazar Lopez, who asserted having visited his aunt, Digna Maravilla (whom he
had not seen since he was four years old), two days after the first bombing of
Manila by the American planes in September, 1944. Lopez claimed to have
seen Digna on that occasion laughing and crying and then staring blankly at the
ceiling, without recognizing the witness; and that he visited her again toward
mid-October of the same year and she had worsened. 25 Coming from a
nephew who expected to succeed if the will in question * were denied probate,
and who sought to become administrator of the estate, even offering to resign
from his position in the government if appointed, 26 this testimony of Lopez was
evidently colored by his monetary interest, thus leading to its correct discrediting
by the trial court. His recollection after 15 years of the alleged symptoms of his
aunt is very suspicious, as it does not even appear that Lopez at the time
bothered to inquire from other persons what caused his aunts alleged abnormal
condition. Moreover, the courts duty to reconcile conflicts of evidence should
lead it to hold that the symptoms described by Lopez were due to a temporary
disturbance of the nerves caused by the unsettling effect of a bombardment not
previously experienced, compatible with the due execution of the will on 7
October 1944. As between the testimony of Lopez and that of attorney
Villanueva, who repeatedly visited and talked to the testatrix around the time her
will was executed, We have no hesitation in accepting the latters view that
Digna Maravilla was competent to make the will when it was signed. The law
itself declares that
"To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties or that his mind be wholly unbroken, unimpaired or
unshattered by disease, injury or other cause." (Civil Code, Article 799; Bugnao
v. Ubag, 14 Phil. 163.)
We are satisfied that the preponderance of evidence is to the effect that the
testament, Exhibit "A," was duly executed by a qualified testatrix and competent
witnesses, in conformity with the statutory requirements.
IN VIEW OF THE FOREGOING, the decree of the court below denying probate
of the 1944 will of Digna Maravilla (Exhibit "A") is reversed and the said
testament is hereby ordered probated. Let the records be returned to the Court
of origin for further proceedings conformable to law. Costs against oppositorsappellees.
Concepcion, C.J., Dizon, Zaldivar, Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.
Makalintal, J., did not take part.
22
G.R. No. L-26545
December 16, 1927
Testate Estate of Florencia R. Mateo. PERFECTO GABRIEL, petitionerappellee,

vs.
RITA R. MATEO, ET AL., opponents-appellants.
R. Gonzales Lloret, Carlos S. Basa, Thomas Cary Welch and Camus, Delgado
and Recto for appellants.
The appellee in his own behalf.
AVANCEA, C. J.:
The judgment appealed from allowed the will of Florencia Mateo dated February
6, 1923, composed of two used sheets to probate. The will appears to be signed
by the testatrix and three witnesses on the left margin of each of the sheets, by
the testatrix alone at the bottom, and by the three witnesses after the attestation
clause. The testatrix died on August 13, 1925. Opposition to such probate was
filed by Rita Mateo, the testatrix's sister, and by other relatives.
The three attesting witnesses to this will, testifying in this case, declared that the
signature of the testatrix were written in their presence and that they signed their
names in the presence of the testatrix and of each other.
The testatrix from girlhood knew how to sign her name and did so with her right
hand; but as the right side of her body later became paralyzed, she learned to
sign with her left hand and for many years thereafter, up to the time of her death,
she used to sign with that hand. Opponents allege that Florencia Mateo did not
sign this will.
There are three salient arguments among those adduced by the opponents in
support of their opposition.
The attesting witnesses testified that the testratrix signed before they did. The
signatures of the testatrix on the left margin of the two sheets of the will are
between the signatures of the two witnesses Vidal Raoa and Julio Gabriel, and
below her surname is the signature of the other witness Felicisimo Gabriel. The
signatures of Vidal Raoa and Julio Gabriel are on a level with each other, while
that of Felicisimo Gabriel is found a little lower down. The testatrix's signatures
start on the line with Felicisimo Gabriel's signature, but tend to rise and her
surname reaches a level with Julio Gabriel's signature.
It is said that this direction of the testatrix's signature was due to the fact that
when it was written Felicisimo Gabriel's signature was already there, and so she
had to write her surname upwards in order to avoid interfering with that
Felicisimo Gabriel, which would have been the case had she continued on the
horizontal line on which she had written her first name. From this detail it is
pretended to draw the inference that the attesting witnesses signed before
testatrix, contrary to their testimony that she singed before they did. This
deduction, however, is unnecessary. It may be inferred with equal, if not greater,
logic that the testatrix signed before him, and when it came to the witness
Gabriel's turn, he, finding the space below the testatrix signature free, signed his
name there. On the other hand, it may be noted that the testatrix's other
signature at the bottom of the will also shows a more or less marked tendency to
rise, notwithstanding the fact that there was no signature with which she might
interfere if she continued to write in a straight horizontal line. Furthermore, if, as
the opposition alleges, the testatrix's signature is not genuine and was placed
there by another person, it is strange that the latter should have done so in such
a way as to write it above Gabriel's signature while following the horizontal line,
when this could have been avoided by simply putting it a little higher. And this
may be attributed to carelessness in the first case, but it cannot be so explained
in the second.
Attention is also called to the apparently different kinds of ink used by the
testatrix in her signature and by the attesting witnesses. Really an examination
of these signature reveals a somewhat deeper intensity of ink in the signature of
the testatrix than in those of the attesting witnesses. It is alleged that this
circumstance cannot be reconciled with the declaration of the attesting
witnesses that they used the same pen and ink as the testatrix. But, only one of
these witnesses declared this. The other one was not sure of it and said that he
said that he did not perfectly remember this detail. The third scarcely made
reference to this particular. At all events, this apparent difference in ink may be
merely
due supposing that the same ink and pen were used to the difference in
pressure employed in writing these signatures, as is reasonable to suppose
when we consider that the testatrix was a paralytic and wrote with her left hand;
or it may have been due to the fact that the attesting witnesses dipped lightly in
the ink while the testatrix dipped the pen so as to take up the ink from the
bottom of the well. To bring out this irregularity, the opposition presented the
expert Del Rosario who asserted, among other things, that the signature of the
testatrix is more recent than that of the attesting witnesses. If this opinion is
correct and if, as alleged, the testatrix's signature is forged, it would mean that
the forgers, after having prepared the will and made the witnesses sign, allowed
sometime to elapsed before forging the testatrix's signature, which supposition
is not all probable, nor has it been explained.lawphi1.net
At all events, even admitting that there is a certain question as to whether the
attesting witnesses signed before or after the testatrix, or whether or not they
signed with the same pen and ink, these are details of such trivial importance,
23
considering that this will was signed two years before the date on which these
witnesses gave their testimony, that it is not proper to set aside the will for this
reason alone.
The attesting witnesses to this will, who testified also as witnesses at the trial of
this case, showed themselves to be intelligent and honest, one of them being a
lawyer of twelve year's practice, and there is no reason to reject their testimony,
and to suppose that they were untruthful in testifying, and that they falsified the
will in question.
Lastly, attention is called to the unreasonableness of the testatrix in not leaving
anything to the principal opponent, her sister Rita Mateo, and to her nephews
and nieces, to whom she had been so affectionate during life. But as to the
affectionate relations between the deceased and the opponents, only the
opponent Rita Mateo testified, and she only stated that she was on good terms
with her sister during the latter's lifetime; that the said sister used to give her a
sack or some gantas of rice, and, a times, a little money; that she held all her
nephews and nieces in equal regard. But even supposing that this were so,
there is nothing strange in the testatrix having left nothing to the opponents, or in
her having left all of her estate to the only heir instituted in her will, Tomas
Mateo, who is also one of her nieces. And not only is it not strange, but it seems
reasonable, since, according to the evidence of the testatrix when the former
was but 3 years old, and from then on up to the time of her death had never
been separated from her.
The opposition presented Doctor Banks as expert. He testified that the
signatures of the testatrix in the will are not genuine. The petitioner, on the other
hand, presented another expert, Pedro Serrano Laktao, who affirmed that these
signatures are genuine. But, over the testimony of these experts, we have the
categorical and positive declaration of veracious witnesses who affirm that these
signatures were written by the testatrix herself.
The judgment appealed from is affirmed, with costs against the appellants. So
ordered.
Johnson, Villamor, Romualdez and Villa-Real, JJ., concur.
24
G.R. No. L-37453
May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO,
respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division,
1
promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the
decision of the Court of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the deceased Isabel
Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago
filed a petition with the Court of First Instance of Rizal docketed as Special
Proceedings No. 3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein petitioner as the
principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a
widow and without issue in the municipality of Navotas, province of Rizal her
place of residence, on June 7, 1961 at the age of eighty-five (85), having been
born in 1876. It is likewise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the
deceased, and that private respondent, with her husband and children, lived with
the deceased at the latters residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog,
appears to have been executed in Manila on the 15th day of April, 1961, or
barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5)
pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the left
margin of all the pages. The attestation clause, which is found on page four,
reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming

mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng
aming mga pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na
ang kasulatang ito na binubuo ng Limang Dahon (Five Pages)
pati na ang dahong ito, na siya niyang TESTAMENTO AT
HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan
ng nasabing testadora na si Isabel Gabriel ang nasabing
testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na
dahon (page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left hand
margin of each and every page), sa harap ng lahat at bawat isa
sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat isa sa amin,
sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat
at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures
of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite
the same, under the heading "Tirahan", are their respective places of residence,
961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal,
for the two Gimpayas. Their signatures also appear on the left margin of all the
other pages. The WW is paged by typewritten words as follows: "Unang Dahon"
and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page
Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic
Church, all expenses to be paid from her estate; that all her obligations, if any,
be paid; that legacies in specified amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago. To herein private respondent
Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal already acquired, or to be
acquired, in her testatrix name, after satisfying the expenses, debts and legacies
as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the following
grounds:
25
1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by
law;
3. that, at the time of the alleged execution of the purported wilt
the decedent lacked testamentary capacity due to old age and
sickness; and in the second alternative
4. That the purported WW was procured through undue and
improper pressure and influence on the part of the principal
beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After
trial, the court a quo rendered judgment, the summary and dispositive portions
of which read:
Passing in summary upon the grounds advanced by the
oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that
the purported will of the deceased was procured through undue
and improper pressure and influence on the part of the
petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention
that at the time of the alleged execution of the purported will, the
deceased lacked testamentary capacity due to old age and
sickness;
3. That sufficient and abundant evidence warrants conclusively
the fact that the purported will of the deceased was not
executed and attested as required by law;
4. That the evidence is likewise conclusive that the document
presented for probate, Exhibit 'F' is not the purported win
allegedly dictated by the deceased, executed and signed by
her, and attested by her three attesting witnesses on April 15,
1961.
WHEREFORE, Exhibit "F", the document presented for probate
as the last wig and testament of the deceased Isabel Gabriel is
here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent

Court, hence, the only issue decided on appeal was whether or not the will in
question was executed and attested as required by law. The Court of Appeals,
upon consideration of the evidence adduced by both parties, rendered the
decision now under review, holding that the will in question was signed and
executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of
the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the deceased
and of each other as required by law, hence allow ed probate.
3
Oppositor Rizalina Gabriel Gonzales moved for reconsideration

of the
4
aforesaid decision and such motion was opposed
by petitioner-appellant
5
Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda,
and on August 28, 1973, respondent Court, Former Special First Division, by
6
Resolution denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of
evidence shows that the supposed last wig and testament of
Isabel Gabriel was not executed in accordance with law
because the same was signed on several occasions, that the
testatrix did not sign the will in the presence of all the
instrumental witnesses did not sign the will in the presence of
each other.
The resolution of the factual issue raised in the motion for
reconsideration hinges on the appreciation of the evidence. We
have carefully re-examined the oral and documentary evidence
of record, There is no reason to alter the findings of fact in the
7
decision of this Court sought to be set aside.
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends
that respondent Court abused its discretion and/or acted without or in excess of
its jurisdiction in reverssing the findings of fact and conclusions of the trial court.
The Court, after deliberating on the petition but without giving due course
resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to
comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in
8
the petition, as well as the Comment of private respondent thereon, We denied
9
the petition by Resolution on November 26, 1973, the question raised being
factual and for insufficient showing that the findings of fact by respondent Court
were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a
10
Motion for Reconsideration which private respondent answered by way of her
11
Comment or Opposition filed on January 15, 1974. A Reply and Rejoinder to
26
Reply followed. Finally, on March 27, 1974, We resolved to give due course to
the petition.
X. The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.
The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely no
proof that the three instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the win Exhibit "F", was unexpected and
coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten
lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the
same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was
incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without any
note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that
Matilde Orobia was not physically present when the Will Exhibit "F" was
allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions,
evasions, and misrepresentations of witnesses (subscribing and notary)
presented by the petitioner had been explained away, and that the trial court
erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so
far departed from the accepted and usual course of judicial proceedings, as to
call for an exercise of the power of supervision.
It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We
must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30,
12
1970, 33 SCRA 737, 743) and Tapas vs. CA (L-22202, February 27; 1976, 69
13
SCRA 393),
and in the more recent cases of Baptisia vs. Carillo and CA
(L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of
Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of
Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then
Justice Recto, it has been well-settled that the jurisdiction of tills Court in cases
brought to us from the Court of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being conclusive. More specifically,
in a decision exactly a month later, this Court, speaking through the then Justice
Laurel, it was held that the same principle is applicable, even if the Court of
Appeals was in disagreement with the lower court as to the weight of the
evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by
substantive evidence are not reviewable on appeal by certiorari. Said findings of
the appellate court are final and cannot be disturbed by Us particularly because
its premises are borne out by the record or based upon substantial evidence and
what is more, when such findings are correct. Assignments of errors involving
factual issues cannot be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The Supreme Court is not
at liberty to alter or modify the facts as set forth in the decision of the Court of
Appeals sought to be reversed. Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute scrutiny by the Supreme Court is in
order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed
to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit "F", was executed and
attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the require.
27
ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner contends
that the term "credible" is not synonymous with "competent" for a witness may
be competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and
well- known meaning it has under the Naturalization Law, the latter being a
kindred legislation with the Civil Code provisions on wigs with respect to the
qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil
Code provides the qualifications of a witness to the execution of wills while
Article 821 sets forth the disqualification from being a witness to a win. These
Articles state:
Art. 820. Any person of sound mind and of the age of eighteen
years or more, and not blind, deaf or dumb, and able to read
and write, may be a witness to the execution of a will mentioned
in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his
reputation for trustworthythiness and reliableness, his honesty and uprightness
in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or
more) is shown from his appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is
able to read and write to the satisfaction of the Court, and that he has none of
the disqualifications under Article 821 of the Civil Code. We reject petitioner's
contention that it must first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness and reliableness, his
honesty and uprightness, because such attributes are presumed of the witness
unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as
used in the Civil Code should be given the same meaning it has under the
Naturalization Law where the law is mandatory that the petition for naturalization
must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their
honesty and uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they personally
know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and
that said petitioner has in their opinion all the qualifications necessary to become
a citizen of the Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental witnesses are not character witnesses
for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution. And We agree with the respondent that
the rulings laid down in the cases cited by petitioner concerning character
witnesses in naturalization proceedings are not applicable to instrumental
witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are
competent and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, 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, While the
petitioner submits that Article 820 and 821 of the New Civil Code speak of the
competency of a witness due to his qualifications under the first Article and none
of the disqualifications under the second Article, whereas Article 805 requires
the attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore,
a witness in addition to being competent under Articles 820 and 821 must also
be a credible witness under Article 805.
28
Petitioner cites American authorities that competency and credibility of a witness

are not synonymous terms and one may be a competent witness and yet not a
credible one. She exacerbates that there is no evidence on record to show that
the instrumental witnesses are credible in themselves, that is, that they are of
good standing in the community since one was a family driver by profession and
the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much less the humble or
financial position of a person do not disqualify him to be a competent
testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100
Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in
Article 820 of the same Code, this being obvious from that portion of Article 820
which says "may be Q witness to the execution of a will mentioned in Article 805
of this Code," and cites authorities that the word "credible" insofar as witnesses
to a will are concerned simply means " competent." Thus, in the case of Suntay
vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was
duly executed and that it was in existence at the time of, and not revoked before,
the death of the testator, still the provisions of the lost wig must be clearly and
distinctly proved by at least two credible witnesses. 'Credible witnesses' mean
competent witnesses and not those who testify to facts from or upon hearsay. "
emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil Procedure
provides that any person of sound mind, and of the age of eighteen years or
more, and not blind, deaf, or dumb and able to read and write, may be a witness
to the execution of a will. This same provision is reproduced in our New Civil
Code of 1950, under Art. 820. The relation of employer and employee, or being
a relative to the beneficiary in a win, does not disqualify one to be a witness to a
will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said
witness must be credible, that is to say, his testimony may be entitled to
credence. There is a long line of authorities on this point, a few of which we may
cite:
A 'credible witness is one who is not is not to testify by mental
incapacity, crime, or other cause. Historical Soc of Dauphin
County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will

means a 'competent witness.' Appeal of Clark, 95 A. 517, 114
Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins
means 'competent witness that is, one competent under the law
to testify to fact of execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60
S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a
will shall be attested by two credible witnesses means
competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts
attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of
the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills,
means competent witnesses that is, such persons as are not
legally disqualified from testifying in courts of justice, by reason
of mental incapacity, interest, or the commission of crimes, or
other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject
matter or in the particular suit. Hill vs. Chicago Title & Trust co
152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to
a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas
his credibility depends On the appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is telling the truth. Thus, in
the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a
witness is one thing, and it is another to be a credible witness, so credible that
the Court must accept what he says. Trial courts may allow a person to testify as
a witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In fine, We state the
rule that the instrumental witnesses in Order to be competent must be shown to
have the qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be credible, that is
worthy of belief and entitled to credence, it is not mandatory that evidence be
first established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established
29
otherwise. In other words, the instrumental witnesses must be competent and

their testimonies must be credible before the court allows the probate of the will
they have attested. We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent proof of the fact that
the witnesses were "credible witnesses that is, that they have a good standing in
the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of
errors, petitioner disputes the findings of fact of the respondent court in finding
that the preparation and execution of the will was expected and not coincidental,
in finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have dictated the will
without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in
holding that the trial court gave undue importance to the picture takings as proof
that the will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses (subscribing
and notary) presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid
down that the findings of fact of the appellate court are binding and controlling
which We cannot review, subject to certain exceptions which We win consider
and discuss hereinafter. We are convinced that the appellate court's findings are
sufficiently justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso
and bringing all the witnesses without previous appointment for the preparation
and execution of the win and that it was coincidental that Atty. Paraiso was
available at the moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions
to his office on April 15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier requested him to help
her prepare her will. The finding of the appellate court is amply based on the
testimony of Celso Gimpaya that he was not only informed on the morning of the
day that he witnessed the will but that it was the third time when Isabel Gabriel
told him that he was going to witness the making of her will, as well as the
testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya
to proceed to Isabel Gabriel's house which was nearby and from said house,
they left in a car to the lawyer's office, which testimonies are recited in the
respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and
his wife Maria Gimpaya obtained residence certificates a few days before Exhibit
"F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was
issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961.
The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and
one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified
that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the
office of Atty. Paraiso was planned by the deceased, which conclusion was
correctly drawn from the testimony of the Gimpaya spouses that they started
from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobia's house in
Philamlife, Quezon City to fetch her and from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about
ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous
to the day that. the will was executed on April 15, 1961, Isabel Gabriel had
requested him to help her in the execution of her will and that he told her that if
she really wanted to execute her will, she should bring with her at least the
Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty.
Paraiso) wanted a medical certificate from a physician notwithstanding the fact
that he believed her to be of sound and disposition mind. From this evidence,
the appellate court rightly concluded, thus: "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya
and Maria Gimpaya including the photographer in the law office of Atty. Paraiso
was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to
type such data into the document Exhibit ' L which the petitioner assails as
contradictory and irreconcilable with the statement of the Court that Atty. Paraiso
was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel
Gabriel and this was corroborated by Atty. Paraiso himself who testified that it
was only on said occasion that he received such list from Isabel Gabriel, We
cannot agree with petitioner's contention. We find no contradiction for the,
respondent Court held that on the occasion of the will making on April 15, 1961,
30
the list was given immediately to Atty. Paraiso and that no such list was given
the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses on a prior occasion or on the very
occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion,
April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the
testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public
and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more
than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the
three typewritten lines under the typewritten words "pangalan ' and "tinitirahan"
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion merits Our approval because tills conclusion is
supported and borne out by the evidence found by the appellate court, thus: "On
page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.
date issued" and place issued the only name of Isabel Gabriel with Residence
Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the three
(3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides
with Atty. Paraiso's even the sale must be made to close relatives; and the
seventh was the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph 5 of
Exhibit F was not given and the numbers of the certificates of title were only
supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are
indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could
have dictated the will Exhibit "F" without any note or document to Atty. Paraiso,
considering that Isabel Gabriel was an old and sickly woman more than eightyone years old and had been suffering from a brain injury caused by two severe
blows at her head and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary
capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or memorandum
appears to be fully supported by the following facts or evidence appearing on
record. Thus, Isabel Gabriel, despite her age, was particularly active in her
business affairs as she actively managed the affairs of the movie business
ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her
deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both
testimonial and documentary is, according to the respondent court,
overwhelming that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very
clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia
was physically present when the will was signed by Isabel Gabriel on April '15,
1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave piano lessons to the
child of the appellant on Wednesdays and Saturdays and that April 15, 1961
happened to be a Saturday for which reason Orobia could not have been
present to witness the will on that day is purely conjectural. Witness Orobia
did not admit having given piano lessons to the appellant's child every
Wednesday and Saturday without fail. It is highly probable that even if April 15,
1961 were a Saturday, she gave no piano lessons on that day for which reason
she could have witnessed the execution of the will. Orobia spoke of occasions
when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons
on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages of
the will, the documentary evidence which is the will itself, the attestation clause
and the notarial acknowledgment overwhelmingly and convincingly prove such
fact that Matilde Orobia was present on that day of April 15, 1961 and that she
witnessed the will by signing her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which
Matilde Orobia signed is the best evidence as to the date of signing because it
31
preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is
made for the purpose of preserving in permanent form a record of the facts
attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved. (Thompson on
Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in
holding that the trial court gave undue importance to the picture-takings as proof
that the win was improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the photographer as
"Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken
which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya.
" Further, the respondent Court correctly held: "The trial court gave undue
importance to the picture takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by
Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were
quite emphatic and positive when they spoke of this occasion. Hence, their
Identification of some photographs wherein they all appeared along with Isabel
Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picturetaking was disclosed at the cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was
important was that the will was duly executed and witnessed on the first
occasion on April 15, 1961 , " and We agree with the Court's rationalization in
conformity with logic, law and jurisprudence which do not require picture-taking
as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before the trial
court. On the other hand, the respondent Court of Appeals held that said
contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso
which he described as "elite" which to him meant big letters which are of the
type in which the will was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was
Benjamin Cifra, Jr. these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such
that by themselves would not alter the probative value of their testimonies on the
true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and
coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach us
"that contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an evidence of
falsehood constitute a demonstration of good faith. In as much as not all those
who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence the
contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not
have been disturbed by the respondent appellate court because the trial court
was in a better position to weigh and evaluate the evidence presented in the
course of the trial. As a general rule, petitioner is correct but it is subject to wellestablished exceptions. The right of the Court of Appeals to review, alter and
reverse the findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and influence have
been ignored and overlooked and the significance of which have been
misinterpreted by the trial court, cannot be disputed. Findings of facts made by
trial courts particularly when they are based on conflicting evidence whose
evaluation hinges on questions of credibility of contending witnesses hes
peculiarly within the province of trial courts and generally, the appellate court
should not interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said
that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel
dictated her will without any note or document to Atty. Paraiso;" that the trial
court's conclusion that Matilde Orobia could not have witnessed anybody
signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing
it, is a conclusion based not on facts but on inferences; that the trial court gave
undue importance to the picture-takings, jumping therefrom to the conclusion
that the will was improperly executed and that there is nothing in the entire
record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with
Matilde Orobia to witness the signing of her will, then it becomes the duty of the
appellate court to reverse findings of fact of the trial court in the exercise of its
appellate jurisdiction over the lower courts.
32
Still the petitioner insists that the case at bar is an exception to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We agree with the petitioner that among
the exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion;
(4) when the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a
car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in
the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving
at the latter's office and told the lawyer that she wanted her will to be made; that
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the
will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed
the will and after finishing the document, he read it to her and she told him that it
was alright; that thereafter, Isabel Gabriel signed her name at the end of the will
in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at the end of the attestation
clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and
Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the
document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her name at the foot of the attestation
clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of the will, a
photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the
testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken
on said occasion of the signing of the will, and another, Exhibit "H", showing
Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to
bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her
witnesses for he did not know beforehand the Identities of the three attesting
witnesses until the latter showed up at his law office with Isabel Gabriel on April
15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in
his own hand the date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible
that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of petitioner that it was
incredible. This ruling of the respondent court is fully supported by the evidence
on record as stated in the decision under review, thus: "Nothing in the record
supports the trial court's unbelief that Isabel Gabriel dictated her will without any
note or document to Atty. Paraiso. On the contrary, all the three attesting
witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso
and that other than the piece of paper that she handed to said lawyer she had
no note or document. This fact jibes with the evidence which the trial court
itself believed was unshaken that Isabel Gabriel was of sound disposing
memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but
quite simple. The first was Isabel Gabriel's wish to be interred according to
Catholic rites the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on
a misapprehension of facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola
Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R.
No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall
within any of the exceptions enumerated above. We likewise hold that the
findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial evidence.
We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the wellestablished rule that the decision of the Court of Appeals and its findings of fact
are binding and conclusive and should not be disturbed by this Tribunal and it
must be applied in the case at bar in its full force and effect, without qualification
or reservation. The above holding simply synthesize the resolutions we have
heretofore made in respect ' to petitioner's previous assignments of error and to
which We have disagreed and, therefore, rejected.
33
The last assignments of error of petitioner must necessarily be rejected by Us as

We find the respondent Court acted properly and correctly and has not departed
from the accepted and usual course of judicial proceedings as to call for the
exercise of the power of supervision by the Supreme Court, and as We find that
the Court of Appeals did not err in reversing the decision of the trial court and
admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and
evaluation of the evidence on record is unassailable that: "From the welter of
evidence presented, we are convinced that the will in question was executed on
April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial register. A few days
following the signing of the will, Isabel Gabriel, Celso Gimpaya and another
photographer arrived at the office of Atty. Paraiso and told the lawyer that she
wanted another picture taken because the first picture did not turn out good. The
lawyer told her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing was
performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies
of the witnesses for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the three instrumental
witnesses who constitute the best evidence of the will making have testified in
favor of the probate of the will. So has the lawyer who prepared it, one learned
in the law and long in the practice thereof, who thereafter notarized it. All of them
are disinterested witnesses who stand to receive no benefit from the testament.
The signatures of the witnesses and the testatrix have been identified on the will
and there is no claim whatsoever and by anyone, much less the petitioner, that
they were not genuine. In the last and final analysis, the herein conflict is factual
and we go back to the rule that the Supreme Court cannot review and revise the
findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
34
G.R. No. L-21755
December 29, 1924
In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA

NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.
ROMUALDEZ, J.:
This is a proceeding for the probate of the will of the deceased Antonio Mojal
instituted by his surviving spouse, Filomena Nayve. The probate is opposed by
Leona Mojal and Luciana Aguilar, sister and niece, respectively, of the
deceased.
The Court of First Instance of Albay, which tried the case, overruled the
objections to the will, and ordered the probate thereof, holding that the
document in controversy was the last will and testament of Antonio Mojal,
executed in accordance with law. From this judgment the opponents appeal,
assigning error to the decree of the court allowing the will to probate and
overruling their opposition.
The will in question, Exhibit A, is composed of four sheets with written matter on
only side of each, that is, four pages written on four sheets. The four sides or
pages containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4,"
successively. Each of the first two sides or pages, which was issued, was signed
by the testator and the three witnesses on the margin, left side of the reader. On
the third page actually used, the signatures of the three witnesses appear also
on the margin, left side of the reader, but the signature of the testator is not on
the margin, but about the middle of the page, at the end of the will and before
the attestation clause. On the fourth page, the signatures of the witnesses do
not appear on the margin, but at the bottom of the attestation clause, it being the
signature of the testator that is on the margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the witnesses on each
and every sheet on the left margin; (b) the fact of the sheets of the document not
being paged with letters; (c) the fact that the attestation clause does not state
the number of sheets or pages actually used of the will; and (d) the fact that the
testator does not appear to have signed all the sheets in the presence of the
three witnesses, and the latter to have attested and signed all the sheets in the
As to the signatures on the margin, it is true, as above stated, that the third page
actually used was signed by the testator, not on the left margin, as it was by the
witnesses, but about the middle of the page and the end of the will; and that the
fourth page was signed by the witnesses, not on the left margin, as it was by the
testator, but about the middle of the page and at the end of the attestation
clause.
In this respect the holding of this court in the case of Avera vs. Garcia and
Rodriguez (42 Phil., 145), is applicable, wherein the will in question was signed
by the testator and the witnesses, not on the left, but right, margin. The rule laid
down in that case is that the document contained the necessary signatures on
each page, whereby each page of the will was authenticated and safeguarded
against any possible alteration. In that case, the validity of the will was
sustained, and consequently it was allowed to probate.
Applying that doctrine to the instant case, we hold that, as each and every page
used of the will bears the signatures of the testator and the witnesses, the fact
that said signatures do not all appear on the left margin of each page does not
detract from the validity of the will.lawphi1.net
Turning to the second defect alleged, that is to say, the fact that the sheets of
the document are not paged with letters, suffice it to cite the case of Unson vs.
Abella (43 Phil., 494), where this court held that paging with Arabic numerals
and not with letters, as in the case before us, is within the spirit of the law and is
just as valid as paging with letters.
As to the proposition that the attestation clause does not state the number of
sheets or pages of the will, which is the third defect assigned, it must be noted
that the last paragraph of the will here in question and the attestation clause,
coming next to it, are of the following tenor:
In witness whereof, I set my hand unto this will here in the
town of Camalig, Albay, Philippine Islands, this 26th day of
November, nineteen hundred and eighteen, composed of
four sheets, including the next:
ANTONIO
MOJAL
(Signed and declared by the testator Don Antonio Mojal to
35
be his last will and testament in the presence of each of us,

and at the request of said testator Don Antonio Mojal, we
signed this will in the presence of each other and of the
testator.)
PEDRO
CARO
SILVERIO
MORCO
ZOILO
MASINAS
As may be seen, the number of sheets is stated in said last paragraph of the
will. It is true that in the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it
was held that the attestation clause must state the number of sheets or pages
composing the will; but when, as in the case before us, such fact, while it is not
stated in the attestation clause, appears at the end of the will proper, so that no
proof aliunde is necessary of the number of the sheets of the will, then there can
be no doubt that it complies with the intention of the law that the number of
sheets of which the will is composed be shown by the document itself, to
prevent the number of the sheets of the will from being unduly increased or
decreased.
With regard to the last defect pointed out, namely, that the testator does not
appear to have signed on all the sheets of the will in the presence of the three
witnesses, and the latter to have attested and signed on all the sheets in the
presence of the testator and of each other, it must be noted that in the
attestation clause above set out it is said that the testator signed the will "in the
presence of each of the witnesses" and the latter signed "in the presence of
each other and of the testator." So that, as to whether the testator and the
attesting witnesses saw each other sign the will, such a requirement was clearly
and sufficiently complied with. What is not stated in this clause is whether the
testator and the witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the
will is one which cannot be proven by the mere exhibition of the will unless it is
stated in the document. And this fact is expressly stated in the attestation clause
now before us. But the fact of the testator and the witnesses having signed all
the sheets of the will may be proven by the mere examination of the document,
although it does not say anything about this, and if that is the fact, as it is in the
instant case, the danger of fraud in this respect, which is what the law tries to
avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnesses
signed each and every page of the will is proven by the mere examination of the
signatures in the will, the omission to expressly state such evident fact does not
invalidate the will nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. So
ordered.
Johnson, Malcolm, and Villamor, JJ., concur.
36
G.R. No. 15566
September 14, 1921
EUTIQUIA AVERA, petitioner-appellee,

vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar
Garcia and Jose Garcia, objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will
of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez,
the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia.
Upon the date appointed for the hearing, the proponent of the will introduced one of
the three attesting witnesses who testified with details not necessary to be here
specified that the will was executed with all necessary external formalities, and
that the testator was at the time in full possession of disposing faculties. Upon the
latter point the witness was corroborated by the person who wrote the will at the
request of the testator. Two of the attesting witnesses were not introduced, nor was
their absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single
witness whose testimony tended to show in a vague and indecisive manner that at
the time the will was made the testator was so debilitated as to be unable to
comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented,
the trial judge found that the testator at the time of the making of the will was of
sound mind and disposing memory and that the will had been properly executed. He
accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will,
and the only errors here assigned have reference to the two following points,
namely, first, whether a will can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question is rendered
invalid by reason of the fact that the signature of the testator and of the three
attesting witnesses are written on the right margin of each page of the will instead of
the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will bay be
proved by the testimony of only one of the three attesting witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest is
instituted, all of the attesting witnesses must be examined, if alive and within reach
of the process of the court.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set for the hearing; and it is probable
that the attorney for the proponent, believing in good faith the probate would not be
contested, repaired to the court with only one of the three attesting witnesses at
hand, and upon finding that the will was contested, incautiously permitted the case
to go to proof without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced,
it does not in itself supply any basis for changing the rule expounded in the case
above referred to; and were it not for a fact now to be mentioned, this court would
probably be compelled to reverse this case on the ground that the execution of the
will had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court
either upon the submission of the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for the first time in this court. We
believe this point is well taken, and the first assignment of error must be declared not
be well taken. This exact question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and we see no reason why
the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal.,
335, 337.)
There are at least two reason why the appellate tribunals are disinclined to permit
certain questions to be raised for the first time in the second instance. In the first
place it eliminates the judicial criterion of the Court of First Instance upon the point
there presented and makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial. In the second
place, it permits, if it does not encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions more
simulated than real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as laying
down any hard and fast rule that would prove an embarrassment to this court in the
administration of justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is necessary if this
court is to contribute the part due from it in the correct decision of the cases brought
before it. What we mean to declare is that when we believe that substantial justice
37
has been done in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been presented in that
court, we will in the exercise of a sound discretion ignore such question relates a
defect which might have been cured in the Court of First Instance if attention had
been called to it there. In the present case, if the appellant had raised this question
in the lower court, either at the hearing or upon a motion for a new trial, that court
would have had the power, and it would have been is duty, considering the tardy
institution of the contest, to have granted a new trial in order that all the witnesses to
the will might be brought into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless subsequently failed without any
apparent reason to take their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses necessary to prove the will
was in issue in the lower court.
The instrument now before us contains the necessary signatures on every page, and
the only point of deviation from the requirement of the statute is that these
signatures appear in the right margin instead of the left. By the mode of signing
adopted every page and provision of the will is authenticated and guarded from
possible alteration in exactly the same degree that it would have been protected by
being signed in the left margin; and the resources of casuistry could be exhausted
without discovering the slightest difference between the consequences of affixing the
signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where
only the leaves, or alternate pages, were signed and not each written page; for as
observed in that case by our late lamented Chief Justice, it was possible that in the
will as there originally executed by the testratrix only the alternative pages had been
used, leaving blanks on the reverse sides, which conceivably might have been filled
in subsequently.
The controlling considerations on the point now before us were well stated In Re will
of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice
Avancea, in a case where the signatures were placed at the bottom of the page
and not in the margin, said:
The second point involved in this case is whether, under section 618 of the Code of
Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in
this jurisdiction that the names of the testator and the instrumental witnesses should
be written on the left margin of each page, as required in said Act, and not upon the
right margin, as in the will now before us; and upon this we are of the opinion that
the will in question is valid. It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of each and every
page; and it is undeniable that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court.
The object of the solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid substitution o will and
testaments and to guarantee their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to attain these
primordial ends. 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.
Still some details at times creep into legislative enactments which are so trivial it
would be absurd to suppose that the Legislature could have attached any decisive
importance to them. The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page rather than on the right
margin seems to be this character. So far as concerns the authentication of the
will, and of every part thereof, it can make no possible difference whether the names
appear on the left or no the right margin, provided they are on one or the other. In
Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this
court declared a will void which was totally lacking in the signatures required to be
written on its several pages; and in the case of Re estate of Saguinsin (41 Phil.,
875), a will was likewise declared void which contained the necessary signatures on
the margin of each leaf ( folio), but not in the margin of each page containing written
matter.
In the case before us, where ingenuity could not suggest any possible prejudice to
any person, as attendant upon the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment
appealed from will be affirmed. It is so ordered, with costs against the appellants.
Johnson, Araullo, Avancea and Villamor, JJ., concur.
38
G.R. No. L-14322
February 25, 1960
In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased,

vs.
DIOSDADA ALBERASTINE, petitioner-appellant.
Agustin Y. Kintanar for appellant.
BAUTISTA ANGELO, J.:
This concerns the probate of a document which purports to be the last will and
testament of one Petronila Tampoy. After the petition was published in accordance
with law and petitioner had presented oral and documentaryevidence, the trial court
denied the petition on the ground that the left hand margin of the first of the will does
not bear the thumbmark of the testatrix. Petitioner appealed from this ruling but the
Court of Appeals certified the case to us because it involves purely a question of
law.
The facts of this case as found by the trial court as follows:
De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a
Bonigfacio Mioza que la leyera el testamento Exhibito A y la expicara su
contenido en su casa en al calle San Miguel, del municipio de Argao,
provincia de Cebu, en 19 de noviember de 1939, y lasi lo hizo Bonifacio
Mioza en presencia de los tres testigos instrumentales, Rosario K. Chan,
Mauricio de la Pea y Simeon Omboy, y despues de conformarse con el
contendido del testamento, ella rogo a Bonifacio Mioza, que escribiera su
nombre al pie del testamento, en la pagina segunda, y asi lo hizo Bonifacio
Mioza, y despues ella estampo su marca digital entra su nombre y apelido
en presencia de todos y cada uno de los tres testigos instrumentales,
Rosario K. Chan, Mauricio de la Pea y Simeon Omboy y de Bonifacio
Mioza, y despues, Bonifacio Mioza firmo tambien al pie del todos y cada
uno de lo tres testigos arriba nombrados. La testadora asi como Bonifacio
Mioza parte de la primera pagina del testamento qeu se halla compuesto
de dos paginas. Todos y cada uno de los tres testigos instrumentales,
Rosario K. Chan, Mauricio de la Pea y Simeon Omboy, firmaron al pie de
la clausula de atestiguamiento que esta escrita en la pagina segunda del
testamento y en la margen izquierda de la misma pagina 2 y de la pagina
primera en presencia de la testadora, de Bonifacio Mioza, del abogado
Kintanar y de todos y cada uno de ellos. El testamento fue otorgado por la
testadora libre y expontaneament, sin haber sido amenazada, forzada o
intimidada, y sin haberse ejercido sobre ella influencia indebida, estando la
misma en pleno uso de sus facultades mentales y disfrutando de buena
salud. La testadore fallecio en su case en Argao en 22 de febrero de 1957
(Vease certificado de defuncion Exhibito B). La heredera instituida en el
testamento, Carmen Alberastine, murio dos semanas despues que la
testadora, o sea en 7 de Marzo de 1957, dejando a su madre, la solicitante

Diosdada Alberastine.
The above facts are not controverted, there being no opposition to the probate of the
will. However, the trial court denied the petition on the ground that the first page of
the will does not bear the thumbmark of the testatrix. Petitioner now prays that this
ruling be set aside for the reason that, although the first page of the will does not
bear the thumbmark of the testatrix, the same however expresses her true intention
to givethe property to her whose claims remains undisputed. She wishes to
emphasize that no one has filed any to the opposition to the probate of the will and
that while the first page does not bear the thumbmark of the testatrix, the second
however bears her thumbmark and both pages were signed by the three testimonial
witnesses. Moreover, despite the fact that the petition for probate is unoppossed, the
three testimonial witnesses testified and manifested to the court that the document
expresses the true and voluntary will of the deceased.
This contention cannot be sustained as it runs counter to the express provision of
the law. Thus, Section 618 of Act 190, as amended, requires that the testator sign
the will and each and every page thereof in the presence of the witnesses, and that
the latter sign the will and each and every page thereof in the presence of the
testator and of each other, which requirement should be expressed in the attestation
clause. This requirement is mandatory, for failure to comply with it is fatal to the
validity of the will (Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that
"Statutes prescribing the formalities to be observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at page 1097, 'A will must be executed in
accordance with the statutory requirements; otherwise it is entirely void.' All these
requirements stand as of equal importance and must be observed, and courts
cannot supply the defective execution of a will. No power or discretion is vested in
them, either to superadd other conditions or dispence with those enumerated in the
statutes" (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Sao vs.
Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54
Phil., 481).
Since the will in question suffers from the fatal defect that it does not bear the
thumbmark of the testatrix on its first page even if it bears the signature of the three
instrumental witnesses, we cannot escape the conclusion that the same fails to
comply with the law and therefore, cannot be admitted to probate.
Wherefore, the order appealed from is affirmed, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.B.L.,
Endencia, Barrera and Gutierrez, David, JJ., concur.
39
G.R. No. 17857
June 12, 1922
In re will of Josefa Zalamea y Abella, deceased.

PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was
residing in the municipality of Pagsanjan, Province of Laguna, executed her last
will and testament with an attached inventory of her properties, Exhibits A and
A-1, in the presence of three witnesses, who signed with her all the pages of
said documents. The testatrix died on the 6th of January, 1921, and, as the
record shows, the executor appointed in the will, Pedro Unson, filed in the court
of First Instance of Laguna on the 19th of January of the same year an
application for the probate of the will and the issuance of the proper letters of
administration in his favor.
To said application an opposition was presently by Antonio Abella, Ignacia
Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of
the deceased Zalamea was not executed in conformity with the provinces of the
law, inasmuch as it was not paged correlatively in letters, nor was there any
attestation clause in it, nor was it signed by the testatrix and the witnesses in the
presence of each other.
Trial having been held, the judge a quo overruled the opposition of the
contestants, and ordered the probate of the will, Exhibit A, and the inventory,
Exhibit A-1, holding that both documents contained the true and last will of the
deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in
their brief they assign three errors, which, in their opinion, justify the reversal of
the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its
finding to the effect that Exhibit A, said to be the will of the deceased Josefa
Zalamea, was executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first
assignment of error tend to impeach the credibility of the witnesses for the
proponent, specially that of Eugenio Zalamea. We have made a careful

examination of the evidence, but have not found anything that would justify us in
disturbing the finding of the court a quo. The attesting witnesses, Eugenio
Zalamea and Gonzalo Abaya, clearly testify that together with the other witness
to the will, Pedro de Jesus, they did sign each and every page of the will and of
the inventory in the presence of each other and of the testatrix, as the latter did
likewise sign all the pages of the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not
signed by the testatrix, nor by the witnesses on the day of the execution of the
will, that is, on the 19th of July, 1918, basing their contention on the testimony of
Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one
of the pages of the will had not been signed by the witnesses, nor by the
testatrix on the day of its execution. Palileo's testimony is entirely contradicted
by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To
our mind, Palileo's testimony cannot prevail over that of the attesting witnesses,
Gonzalo Avaya and Eugenio Zalamea. The appellants impeach the credibility of
Eugenio Zalamea, for having made a sworn declaration before the justice of the
peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he
was really one of the witnesses to the will in question, which fact was
corroborated by himself at the trial. The appellants take Zalamea's testimony in
connection with the dismissal of a criminal case against a nephew of his, in
whose success he was interested, and infer from this fact the partiality of his
testimony. We deem this allegation of little importance to impeach the credibility
of the witness Zalamea, especially because his testimony is corroborated by the
other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who had
prepared the testament at the instance of the testatrix. The foregoing is sufficient
for us to conclude that the first assignment of error made by the appellants is
groundless.
The appellants contend that the court below erred in admitting the will to probate
notwithstanding the omission of the proponent to produce one of the attesting
witnesses.
At the trial of this case the attorneys for the proponent stated to the court that
they had necessarily to omit the testimony of Pedro de Jesus, one of the
persons who appear to have witnessed the execution of the will, for there were
reasonable grounds to believe that said witness was openly hostile to the
proponent, inasmuch as since the announcement of the trial of the petition for
the probate of the will, said witness has been in frequent communication with the
contestants and their attorney, and has refused to hold any conference with the
attorneys for the proponent. In reply to this, the attorney for the contestants, said
to the court, "without discussing for the present whether or not in view of those
facts (the facts mentioned by the attorneys for the petitioner), in the hypothesis
that the same are proven, they are relieved from producing that witness, for
40
while it is a matter not decided, it is a recognized rule that the fact that a witness
is hostile does not justify a party to omit his testimony; without discussing this, I
say, I move that said statement be stricken out, and if the proponent wants
these facts to stand to stand in the record, let him prove them." The court a quo
ruled, saying, "there is no need."
this point is well taken, and the first assignment of error must be
declared not to be well taken. This exact question has been decided by
the Supreme Court of California adversely to the contention of the
appellant, and we see no reason why the same rule of practice should
not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
To this ruling of the court, the attorney for the appellants did not take any
exception.
There are at least two reasons why the appellate tribunals are
disinclined to permit certain questions to be raised for the first time in
the second instance. In the first place it eliminates the judicial criterion of
the Court of First Instance upon the point there presented and makes
the appellate court in effect a court of first instance with reference to that
point, unless the case is remanded for a new trial. In the second place, it
permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while they are
engaged in other discussions more simulated than real. These
considerations are, we think, decisive.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided
by this court, in deciding the question whether a will can be admitted to probate,
where opposition is made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two, it was said; "while it is
undoubtedly true that an uncontested will may be proved by the testimony of
only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado
(34 Phil., 291), this court declared after an elaborate examination of the
American and English authorities that when a contest is instituted, all of the
attesting witnesses must be examined, if alive and within reach of the process of
the court.
In the present case no explanation was made at the trial as to why all
three of the attesting witnesses were not produced, but the probable
reason is found in the fact that, although the petition for the probate of
this will had been pending from December 21, 1917, until the date set
for the hearing, which was April 5, 1919, no formal contest was entered
until the very day set for the hearing; and it is probable that the attorney
for the
proponent, believing in good faith that probate would not be
contested, repaired to the court with only one of the three attesting
witnesses at hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking for a
postponement of the trial in order that he might produce all the attesting
witnesses.
Although this circumstance may explain why the three witnesses were
not produced, it does not in itself supply any basis for changing the rule
expounded in the case above referred to; and were it not for a fact now
to be mentioned, this court would probably be compelled to reverse this
case on the ground that the execution of the will had not been proved by
a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in
the lower court either upon the submission of the cause for
determination in that court or upon the occasion of the filing of the
motion for a new trial. Accordingly it is insisted for the appellee that this
question cannot now be raised for t he first time in this court. We believe
In ruling upon the point above presented we do not wish to be

understood as laying down any hard and fast rule that would prove an
embarrassment to this court in the administration of justice in the future.
In one way or another we are constantly here considering aspects of
cases and applying doctrines which have escaped the attention of all
persons concerned in the litigation below; and this is necessary if this
court is to contribute the part due from it in the correct decision of the
cases brought before it. What we mean to declare is that when we
believe that substantial justice has been done in the Court of First
Instance, and the point relied on for reversal in this court appears to be
one which ought properly to have been presented in that court, we will in
the exercise of a sound discretion ignore such question upon appeal;
and this is the more proper when the question relates to a defect which
might have been cured in the Court of First Instance if attention had
been called to it there. In the present case, if the appellant had raised
this question in the lower court, either at the hearing or upon a motion
for a new trial, that court would have had the power, and it would have
been its duty, considering the tardy institution of the contest, to have
granted a new trial in order that all the witnesses to the will might be
brought into court. But instead of thus calling the error to the attention of
the court and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains
nothing inconsistent with the ruling we now make, for it appears from the
opinion in that case that the proponent of the will had obtained an order
for a republication and new trial for the avowed purpose of presenting
41
the two additional attesting witnesses who had not been previously
examined, but nevertheless subsequently failed without any apparent
reason to take their testimony. Both parties in that case were therefore
fully apprised that the question of the number of witnesses necessar to
prove the will was in issue in the lower court.
In the case at bar, we do not think this question properly to have been raised at
the trial, but in the memorandum submitted by the attorney for the appellants to
the trial court, he contended that the will could not be admitted to probate
because one of the witnesses to the will was not produced, and that the
voluntary non-production of this witness raises a presumption against the
pretension of the proponent. The trial court found that the evidence introduced
by the proponent, consisting of the testimony of the two attesting witnesses and
the other witness who was present at the execution, and had charge of the
preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As
announced in Cabang vs. Delfinado, supra, the general rule is that, where
opposition is made to the probate of a will, the attesting witnesses must be
produced. But there are exceptions to this rule, for instance, when a witness is
dead, or cannot be served with process of the court, or his reputation for truth
has been questioned or he appears hostile to the cause of the proponent. In
such cases, the will may be admitted to probate without the testimony of said
witness, if, upon the other proofs adduced in the case, the court is satisfied that
the will has been duly executed. Wherefore, we find that the non-production of
the attesting witness, Pedro de Jesus, as accounted for by the attorney for the
proponent at the trial, does not render void the decree of the court a quo,
allowing the probate.
But supposing that said witness, when cited, had testified adversely to the
application, this would not by itself have change the result reached by the court
a quo, for section 632 of the Code of Civil Procedure provides that a will can be
admitted to probate, notwithstanding that one or more witnesses do not
remember having attested it, provided the court is satisfied upon the evidence
adduced that the will has been executed and signed in the manner prescribed
by the law.
The last error assigned by the appellants is made to consist in the probate of the
inventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause
in it, and its paging is made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1,
and at the bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the
page containing the signatures and the attestation of the witnesses; I
have likewise signed the inventory attached to this will composed of ten
folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea,

Pedro de Jesus, in this municipality of Pagsanjan, Laguna, Philippine
Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one whereunto
we have affixed our signatures, as well as the inventory of the properties
of Doa Josefa Zalamea y Abella, was read to Doa Josefa Zalamea y
Abella, and the latter affixed her name to the last, and each and every
page of this will and inventory composed of ten folios in our presence;
and she declared this to be her last will and testament and at her
request we have affixed hereunto our respective signatures in her
presence and in the presence of each other as witnesses to the will and
the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of
it, we find that the foregoing attestation clause is in compliance with section 1 of
Act No. 2645, which requires this solemnity for the validity of a will, and makes
unnecessary any other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to
the doctrine announced in the case of Aldaba vs. Roque (p. 378, ante), recently
decided by this court. In that case the validity of the will was assailed on the
ground that its folios were paged with the letters A, B, C, etc., instead of with the
letters "one," two," "three," etc. It was held that this way of numbering the pages
of a will is in compliance with the spirit of the law, inasmuch as either one of
these methods indicates the correlation of the pages and serves to prevent the
abstraction of any of them. In the course of the decision, we said: "It might be
said that the object of the law in requiring that the paging be made in letters is to
make falsification more difficult, but it should be noted that since all the pages of
the testament are signed at the margin by the testatrix and the witnesses, the
difficulty of forging the signatures in either case remains the same. In other
words the more or less degree of facility to imitate the writing of the letters A, B,
C, etc., does not make for the easiness to forge the signatures. And as in the
present case there exists the guaranty of the authenticity of the testament,
consisting in the signatures on the left margins of the testament and the paging
thereof as declared in the attestation clause, the holding of this court in Abangan
vs. Abangan (40 Phil., 476), might as well be repeated:
42
"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
unnecessary, useless, and frustrative of the testator's last will, must be
disregarded."
In that case the testament was written on one page, and the attestation clause
on another. Neither one of these pages was numbered in any way, and it was
held: "In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator and three
witnesses, and the second contains only the attestation clause and is signed
also at the bottom by the three witnesses it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged."
This means that, according to the particular case, the emission of paging does
not necessarily render the testament invalid.
names appear on the left or on the right margin, provided they are on
one or the other. In Craig vs. Tatlonghari (G. R. No. 12558, decided
March 23, 1918, not reported), this court declared a will void which was
totally lacking in the signatures required to be written on its several
pages; and in the case of Re Estate of Saguinsin (41 Phil., 875) a will
was likewise declared void which contained the necessary signatures on
the margin of each leaf (folio), but not in the margin of each page
containing written matter."
We do not desire to intimate that the numbering in letters is a requisite of no
importance. But since its principal object is to give the correlation of the pages,
we hold that his object may be attained by writing one, two, three, etc., as well
as by writing A, B, C, etc.
We see no reason why the same rule should not be applied where the paging is
in Arabic numerals, instead of in letters, as in the inventory in question. So that,
adhering to the view taken by this court in the case of Abangan vs. Abangan,
and followed in Aldava vs. Roque, with regard to the appreciation of the
solemnities of a will, we find that the judgement appealed from should be, as is
hereby, affirmed with the costs against the appellants. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand, Johns and Romualdez, JJ., concur.
The law provides that the numbering of the pages should be in letters placed on
the upper part of the sheet, but if the paging should be placed in the lower part,
would the testament be void for this sole reason? We believe not. The law also
provides that the testator and the witnesses must sign the left margin of each of
the sheets of the testament; but if they should sign on the right margin, would
this fact also annul the testament? Evidently not. This court has already held in
Avera vs. Garcia and Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and every
page; and it is undeniable that the general doctrine is to the effect that
all statutory requirements as to the execution of wills must be fully
complied with. The same execution for wills must be fully complied with.
The same doctrine is also deducible from cases heretofore decided by
this court."
"Still some details at time creep into legislative enactments which are so
trivial that it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect
that the signatures of the testator and witnesses shall be written on the
left margin of each page rather than on the margin seems to be of
this character. So far as concerns the authentication of the will, and of
every part thereof, it can make no possible difference whether the
43
G.R. No. L-17304
May 22, 1922
In re will of Maria Roque y Paraiso, deceased.

CEFERINO ALDABA, petitioner-appellee,
vs.
LUDOVICO ROQUE, opponent-appellant.
Lucero and Tengo for appellant.
Vicente Platon for appellee.
VILLAMOR, J.:
It appears from the record of the case that on July 9, 1918, Maria Roque y
Paraiso, the widow of Bruno Valenzuela, resident of the barrio of Mambog,
municipality of Malolos, Province of Bulacan, executed her last will and
testament in the Tagalog dialect with the help of Vicente Platon and in the
presence of three witnesses who signed the attestation clause and each of the
four pages of the testament. Maria Roque died on December 3, 1919, and when
her will was filed in court for probate, it was contested by Ludovico Roque on the
ground that it had not been prepared nor executed in conformity with the
requirements and solemnities prescribed by law.
After due proceedings had been had, the Court of First Instance of Bulacan by
its decision rendered on February 27th of the following year, pronounced the
testament in question valid, and ordered its probate, appointing Ceferino Aldaba
as the administrator of the estate.
The errors assigned by the appellant are two, to wit: "That each and every folio
of the said testament is not paged correlatively in letter," and "that the said will
lacks the attestation clause required by law."
We have examined document Exhibit 4 which is the will in question and we find
at the end thereof the following in Tagalog which translated into English reads:
This document expresses my last and spontaneous will, and is my last
will and testament, which was drawn by the lawyer, Don Vicente Platon,
at my direction, and everything contained in this testament has been
ordained and directed by me to said Vicente Platon in order that it might
be embodied in this testament, and after this testament has been drawn
up, I directed him to read it so that I might hear all its contents, and I
have heard and understood all the contents of this document which is
my last will, wherefore, and not knowing how to write, I have requested
Don Vicente Platon to write and sign my name in my stead hereon; I
declare that this testament is composed of four sheets, actually used,
that the sheets are paged with the letter A, B, C, and d, and above my
name I have placed the thumb mark of my right hand in the presence of
the subscribing witnesses, and that all the witnesses have signed in my
presence and of each other here at Malolos, Bulacan, this 9th day of the
month of July, 1918; and I also declare that at my request Don Vicente
Platon has written my name on the left margin of all pages of this
testament, in the presence of the witnesses, and all the witnesses have
also signed all the pages of this testament on the left margin in my
presence and that of each other.
X (Her thumb mark)
MARIA ROQUE Y PARAISO,
Per VICENTE PLATON.
(Sgd.) REGINO E. MENDOZA,
Witness.
(Sgd.) IGNACIO ANIAG,
Witness.
(Sgd.) CEFERINO ALDABA.
Witness.
In reality, it appears that it is the testatrix who makes the declaration about the
points contained in the above described paragraph; however, as the witnesses,
together with the testatrix, have signed the said declaration, we are of the
opinion and so hold that the words above quoted of the testament constitute a
sufficient compliance with the requirements of section 1 of Act No. 2645 which
provides that:
which the will is written, and the fact that the testator signed the will and
latter witnessed and signed the will and all the pages thereof in the
In regard to the other assignment of error, to wit, that each of the folios of the
said testament is not paged correlatively in letters "one." "two," "three," etc., but
only with the letters A, B, C, etc., we are of the opinion that this method of
indicating the paging of the testament is a compliance with the spirit of the law,
since either one of the two ways above-mentioned indicates the correlation of
the pages and serves to prevent the loss of any of them. It might be said that the
object of the law in requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that since all the pages of the
44
testament are signed at the margin by the testatrix and the witnesses, the
difficulty of forging the signatures in either case remains the same. In other
words the more or less degree of facility to imitate the writing of the letters A, B,
C, etc., does not make for the easiness to forge the signature. And as in the
present case there exists the guaranty of the authenticity of the testament,
consisting in the signatures on the left marging of the testament and the paging
thereof as declared in the attestation clause, the holding of this court in Abangan
vs. Abangan (40 Phil, 476), might as well be repeated:
The object of the solemnities surrounding the execution of wills is to
and testaments and to guarantee their truth and authenticity. Therefore
already given assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely unnecesary,
useless, and frustrative of the testator's last will, must be disregarded.
In that case the testament was written on one page, and the attestation clause
on another. Neither one of these pages was numbered in any way; and it was
held:
In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator
and three witnesses and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses, it is not
necessary that both sheets be further signed on their margings by the
testator and the witnesses, or be paged.
This means that, according to the particular case, the omission of paging does
not necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on
the upper part of the sheet, but if the paging should be place din the lower part,
would the testament be void for his sole reason? We believe not. The law also
provides that the testator and the witnesses must sign the left margin of each of
the sheets of the testament; but if they should sign on the right margin, would
this fact also annul the testament? Evidently not. This court has already held in
Avera vs. Garcia and Rodriguez (42 Phil., 145):lvvph1n+
It is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and every
page; and it is undeniable that the general doctrine is to the effect that
all statutory requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from cases
heretofore decided by this court
Still some details at times creep into legislative enactments which are so
trivial that it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect
that the signatures of the testator and witnesses shall be written on the
left margin of each page rather than on the right margin seems to
be of this character. So far as concerns the authentication of the will,
and of every part thereof, it can make no possible different whether the
names appear on the left or on the right margin, provided they are on
one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided
March 23, 1918, not reported), this court declared a will void which was
totally lacking in the signatures required to be written on its several
pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will
was likewise declared void which contained the necessary signature on
the margin of each left (folio), but not on the margin of each page
containing written matter.
We do not desire to intimate that the numbering in letters is a requisite of no
importance. But since its principal object is to give the correlation of the pages,
we hold that this object may be attained by writing "one." "two," "three," etc., well
as by writing A, B, C, etc. Following, therefore, the view maintained by this court
in the case of Abangan vs. Abangan, supra, as regards the appreciation of the
solemnities of a testament, we decide that the judgment appealed from must be,
as is hereby, affirmed with costs against the appellant. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand and Romualdez, JJ., concur.
45
G.R. No. L-21151
February 25, 1924
In re will of Antonio Vergel de Dios, deceased.

RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough for
appellants.
Eusebio Orense & Antonio M. Opisso for appellees.
ROMUALDEZ, J.:
The question in this case is as to the validity of the document Exhibit A as a will,
which was propounded by Ramon J. Fernandez for probate, and contested by
Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court of
First Instance of Manila having denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court
in holding the attestation fatally defective and in not finding Act No. 2645 void.
The defects attributed to the will by the contestants are as follows, to wit:
(a) It was not sufficiently proven that the testator knew the contents of
the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the testator, or of
each other, nor with knowledge on the part of the testator that they were
signing his will.
(f ) The witnesses did not sign the attestation clause before the death of
the testator.
(g) This clause was written after the execution of the dispositive part of
the will and was attached to the will after the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are not

authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to
the testator, the latter's mind was perfectly sane and he understood it: that he
signed all the pages of the will proper, although he did not sign the page
containing the attestation clause; that while he did not personally call the
witnesses, yet the latter were invited by Attorney Lopez Lizo to act as such in his
presence. The law does not require that the testator precisely be the person to
request the witnesses to attest his will. It was also sufficiently established in the
record, beside being stated in the attestation clause, that the testator signed the
will in the presence of the three witnesses and that the latter, in turn, signed it in
the presence of the testator and of each other, the testator knowing that the
witnesses were signing his will; that the witnesses signed the attestation clause
before the death of the testator; that this clause, with the names of the witnesses
in blank, was prepared before the testator signed the will, and that the sheet
containing said clause, just as those of the will proper, was a loose sheet, and
that all the four sheets of which the will Exhibit A was actually composed were
kept together and are the very ones presented in this case; and finally, that the
signatures of the testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those
mentioned by the opponents, and it having been proven that the testator
executed said will in a language known by him and consciously, freely and
spontaneously, it would seen unnecessary to go further, and the matter might be
brought to a close right here, by holding the will in question valid and allowable
to probate, were it not for the fact that the trial court and the opponents
questioned the sufficiency and validity of the attestation clause because the
sheet on which it is written is not numbered, and it is not stated there that the
testator signed on the margin of each sheet of the will in the presence of the
three witnesses, or that the latter signed it is the presence of the testator and of
each other, and specially because said attestation clause is not signed by the
testator either at the margin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true that
it does not appeal on the upper part of the sheet, but it does not appear in its
text, the pertinent part of which is copied hereinafter, with the words, having
reference to the number of sheets of the will, underscored, including the page
number of the attestation:
* * * We certify that the foregoing document written in Spanish, a
language known by the testator Antonino Vergel de Dios, consisting of
three sheet actually used, correlatively enumerated, besides this sheet .
...
46
If, as stated in this clause, the foregoing document consists of three sheets,
besides that of the clause itself, which is in singular, it is clear that such a sheet
of the attestation clause is the fourth and that the will, including said sheet, has
four sheets. This description contained in the clause in question constitutes
substantial compliance with the requirements prescribed by the law regarding
the paging. So it was held by this Court in the case of Abangan vs. Abangan (40
Phil., 476), where the sheet containing the attestation, as well as the preceding
one, was also not paged. Furthermore the law, as we shall see later on, does
not require that the sheet containing nothing but the attestation clause, wholly or
in part, be numbered or paged. Consequently this lack of paging on the
attestation sheet does not take anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated that the
testator signed on the margin of each sheet of the will, in the presence of the
witnesses and the latter in the presence of each other, let us see what is said in
said clause on this point, and to this end its pertinent part is hereinafter
transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the aforesaid will in our
presence and we at his request did the same in his presence and in that
of each other as witnesses to the will, and lastly, the testator, as well as
we, as witnesses, signed in the same manner on the left margin of each
sheet. (Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant case mean,
and it in fact means nothing, but that the testator and the witnesses signed on
the left margin of each sheet of the will "in the same manner" in which they
signed at the bottom thereof, that is, the testator in the presence of the
witnesses and the latter in the presence of the testator and of each other. This
phrase in the same manner cannot, in view of the context of the pertinent part,
refer to another thing, and was used here as a suppletory phrase to include
everything and avoid the repetition of a long and difficult one, such as what is
meant by it. The same section 618 of the Code of Civil Procedure, in order to
avoid the repetition of the same long phrase about the testator having signed in
the presence of the witnesses and the latter in the presence of each other,
resorts to a similar expression in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet
containing the attestation clause, this point was already decided in the above
cited case of Abangan vs. Abangan, where this court held that:
The testator's signature is not necessary in the attestation clause
because this, as its name implies, appertains only to the witnesses and
not to the testator.
In that case of Abangan vs. Abangan it was held that the signature of the
testator is not necessary in the attestation clause, but the theory is not
announced that such a clause is unnecessary to the validity to the will.
For this reason such doctrine does not annul the judgment in the case of Uy
Coque vs. Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among
others, was laid down that the attestation clause is necessary to the validity of
the will. One of the points on which greatest stress was laid in that case Uy
Coque is that the requirements of the law regarding the number of the pages
used, the signing of the will and of each of its pages by the testator in the
presence of three witnesses, and the attestation and signing of the will and of
each of its pages by the witnesses in the presence of each other cannot be
proven aliunde but by the attestation clause itself which must express the
complaince of the will with such requirements. But it was not held in that case of
Uy Coque that the signature of the testator was necessary in the attestation
clause, nor was such point discussed there, which was the point at issue in the
case of Abangan vs. Abangan, supra.
The appellees, however, argue that such clause in the case of Abangan vs.
Abangan begins at the bottom and on the same sheet in which the testamentary
provision terminated, that is to say, the will properly speaking. Even then if it is
intended to commit misrepresentation or fraud, which are the things that with the
requirements of the law for the making and attesting of wills it is intended to
avoid, it is just the same that the clause; as in the case of Abangan vs.
Abangan, begins at the bottom of the will properly speaking, as, like the case
before us, it is wholly contained in a separate sheet. The fact is that this
separate sheet, containing the attestation clause wholly or in part, is not signed
any place by the testator in the case of Abangan vs. Abangan, as it is not in the
present case.
Section 618 of the code of Civil Procedure, as amended by Act No. 2645,
contains three paragraphs, of which the first enumerates in general terms the
requirements to be met by a will executed after said Code took effect, to wit, that
the language or dialect in which it is written be known by the testator, that it be
signed by the latter or by another person in the name of the testator by his
express direction and in his presence, and that it be attested and signed by
three or more credible witnesses in the presence of the testator and of each
other.
These general rules are amplified in the next two paragraphs as to the special
requirements for the execution of the will by the testator and the signing thereof
by the witnesses, with which the second paragraph of the section deals, and as
to the attestation clause treated in the third and last paragraph of said section
618.
47
For this reason the second paragraph of this section 618 says:
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will properly
speaking, without any reference whatsoever to the attestation clause not treated
in this second paragraph. It is in this second paragraph which deals only with the
will (without including the attestation clause), that the signature or name of the
testator and those of the witnesses are mentioned as necessary on the left
margin of each and everyone of the sheets of the will (not of the attestation
clause), as well as the paging of said sheet (of the will, and not of the attestation
clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary
in the attestation clause? Let us see the last paragraph of this section 618 of the
Code which already deals with the requirements for the attestation clause. This
last paragraph reads thus:
latter witnessed and signed the will and all pages thereof in the
As may be seen this last paragraph refers to the contents of the text of the
attestation, not the requirements or signatures thereof outside of its text. It does
not require that the attestation be signed by the testator or that the page or
sheet containing it be numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a complement,
without which it cannot be probate and with which only not aliunde (Uy
Coque vs. Navas L. Sioca , supra) may the requirements to be stated in
its text be proven. The attestation clause must be prepared and signed,
as in the instant case, on the same occasion on which the will is
prepared and signed, in such a way that the possibility of fraud, deceit
or suppression of the will or the attestation clause be reduced to a
minimum; which possibility always exists, as experience shows, in spite
of the many precautions taken by the legislator to insure the true and
free expression of one's last will.
Second. That the will is distinct and different from the attestation,
although both are necessary to the validity of the will, similar, in our
opinion, to a document which is not public so long as it is not
acknowledged before a notary, the document being a distinct and
different thing from the acknowledgment, each of which must comply
with different requisites, among which is the signature of the maker
which is necessary in the document but not in the acknowledgment and
both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in
the second paragraph of section 618 of the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance
with the requirements prescribed for the will.
In the case at bar the attestation clause in question states that the requirements
prescribed for the will were complied with, and this is enough for it, as such
attestation clause, to be held as meeting the requirements prescribed by the law
for it.
The fact that in said clause the signature of the testator does not appear does
not affect its validity, for, as above stated, the law does not require that it be
signed by the testator.
We find no merit in the assignment of error raising the question as to the validity
of Act No. 2645, which is valid. For the purposes of this decision, it is not
necessary to reason out this conclusion, it being sufficient for the adjudication of
this case to hold the first error assigned by the appellants to have been
demonstrated.
The foregoing conclusions lead us to hold, as we do here by hold, that the
documents Exhibit A, as the last will and testament of the deceased Antonio
Vergel de Dios, meets all the requirements prescribed by the low now in force
and therefore it must be allowed to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court
proceed with the probate of the will Exhibit A in accordance with law, without
express pronouncement as to costs. So ordered.
Street, Malcolm, Avancea and Johns, JJ., concur.
48
G.R. No. L-1787
August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully
the probate of what purports to be the last will and testament (Exhibit A) of Don
Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947,
almost six months after the document in question was executed. In the court
below, the present appellant specified five grounds for his opposition, to wit: (1)
that the deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the execution of the
will, he was wanting in testamentary as well as mental capacity due to advanced
age; (4) that, if he did ever execute said will, it was not executed and attested as
required by law, and one of the alleged instrumental witnesses was
incapacitated to act as such; and it was procured by duress, influence of fear
and threats and undue and improper pressure and influence on the part of the
beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez,
and the herein proponent, Jose S. Lopez; and (5) that the signature of the
testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these
words: "That the court a quo erred in holding that the document Exhibit "A" was
executed in all particulars as required by law." To this objection is added the
alleged error of the court "in allowing the petitioner to introduce evidence that
Exhibit "A" was written in a language known to the decedent after petitioner
rested his case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of
a separate sheet. The first sheet is not paged either in letters or in Arabic
numerals. This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud,
and to afford means of preventing the substitution or of defecting the loss of any
of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the
omission to put a page number on the first sheet, if that be necessary, is
supplied by other forms of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is clearly identified as the
first page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the first and
second lines on the second page are undeniably a continuation of the last
sentence of the testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered page contains the
caption "TESTAMENTO," the invocation of the Almighty, and a recital that the
testator was in full use of his testamentary faculty, all of which, in the logical
order of sequence, precede the direction for the disposition of the marker's
property. Again, as page two contains only the two lines above mentioned, the
attestation clause, the mark of the testator and the signatures of the witnesses,
the other sheet can not by any possibility be taken for other than page one.
Abangan vs. Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922
are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error,
the matter of the credibility of the witnesses is assailed under this heading. On
the merits we do not believe that the appellant's contention deserves serious
consideration. Such contradictions in the testimony of the instrumental
witnesses as are set out in the appellant's brief are incidents not all of which
every one of the witnesses can be supposed to have perceived, or to recall in
the same order in which they occurred.
Everyday life and the result of investigations made in the field of
experimental psychology show that the contradictions of witnesses
generally occur in the details of a certain incident, after a long series of
questioning, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an
incident are impressed in like manner, it is but natural that in relating
their impressions they should not agree in the minor details; hence, the
contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his
name. The reason for this was that the testator was suffering from "partial
paralysis." While another in testator's place might have directed someone else
to sign for him, as appellant contends should have been done, there is nothing
curious or suspicious in the fact that the testator chose the use of mark as the
means of authenticating his will. It was a matter of taste or preference. Both
ways are good. A statute requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53
Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion
that the trial court communicated an abuse of discretion in allowing the appellant
to offer evidence to prove knowledge of Spanish by the testator, the language in
which the will is drawn, after the petitioner had rested his case and after the
49
opponent had moved for dismissal of the petition on the ground of insufficiency
of evidence. It is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this discretion will
not be reviewed except where it has clearly been abused. (64 C. J., 160.) More,
it is within the sound discretion of the court whether or not it will allow the case
to be reopened for the further introduction of evidence after a motion or request
for a nonsuit, or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the request, motion,
or demurrer, or has granted it or has denied the same, or after the motion has
been granted, if the order has not been written, or entered upon the minutes or
signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced
their respective direct proofs, they are allowed to offer rebutting evidence only,
but, it has been held, the court, for good reasons, in the furtherance of justice,
may permit them to offer evidence upon their original case, and its ruling will not
be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally, additional evidence is allowed when it is newly discovered, or where it
has been omitted through inadvertence or mistake, or where the purpose of the
evidence is to the evidence is to correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission
to present evidence on the testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will
for its silence on the testator's understanding of the language used in the
testament. There is no statutory requirement that such knowledge be expressly
stated in the will itself. It is a matter that may be established by proof aliunde.
This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the
probate of a will written in Tagalog was ordered although it did not say that the
testator knew that idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog region, from
which the court said "a presumption arises that said Maria Tapia knew the
Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament of
Don Sixto Lopez is affirmed, with costs.
Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.
50
G.R. No. L-2415
July 31, 1950
Testatee estate of the late Paula Toray. EUSTAQUIA TENEFRANCIA,

petitioner-appellant,
vs.
ROSA ABAJA, oppositor-appellee.
Ditching and Ditching for petitioner-appellant.
Romeo C. Castillo for oppositor-appellee.
REYES, J.:
This is an appeal from an order of the Court of First Instance of Negros
Occidental denying probate of a will.
The will in question purports to have been executed in August, 1943, by Paula
Toray, who died the following month. Presented for probate by one of the
legatees, the herein appellant Eustaquia Tenefrancia, it was opposed by Rosa
Abaja, daughter of the deceased Eulogia Abaja, instituted heir in an earlier will
executed by the same testatrix and her deceased husband. The lower court
disallowed the will on the ground that it was not executed in accordance with law
in that the attestation clause did not state that the testatrix signed the will in the
presence of the instrumental witnesses.
Among the formalities prescribed by law (section 618 of Act 190, as amended by
Act No. 2645) to a valid will is the requirement that the attestation clause should
state "the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the
presence of three witnesses." This requirement was not complied with in the
present case, for the attestation clause fails to state that fact. This is obvious
from the following agreed translation of the said attestation clause:
Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao todos
vecinos del Barrio Inayauan, Cawayan, Negros occidental, Filipinas,
testigos de este testamento, Testificamos que Paula Toray, la testadora
que declaro que este es su testamento o ultima voluntad y que cuando
otorgo este testamento, ella estaba en su sano y cabal juicio, habiendo
hecho constar el mismo, en dos pliegos de papel, firmados por nosotros
en presencia de la testadora, y de nosotros tres testigos en todos los
peligros de este testamento.
It is pointed out, however, that the attestation clause states that the testatrix
declared in the presence of the three witnesses that the document in question
was her last will or testament, and it is argued that this testament taken together
with the preceding clause which reads: "En fe de todo lo cual firmo con mi
nombre este mi testamento o ultima voluntad, escrito en dialecto visayo que es
el dialecto que poseo y hablo, en Inayauan, comprension de Cawayan, Filipinas,
hoy a 16 de Agosto de 1943," expresses the idea that the testatrix signed the
will in the presence of the witnesses. The argument is not only far-fetched but it
also overlooks the fact that it is in the attestation clause signed the will in the
presence of the subscribing witnesses, since that is one of the statements by
law required to be embodied in the attestation clause. The words above quoted,
which, in the will in question, are written above the signature of the testator and
come before the attestation clause, do not form a part of the latter. By the
attestation clause is meant "that clause wherein the witnesses certify that the
instrument has been executed before them, and the manner of the execution of
the same." (Black, Law Dictionary.) It is signed not by the testator but by the
witnesses, for it is a declaration made by the witnesses and not by the testator.
And the law is clear that it is the attestation clause that must contain a
statement, among others, that the testator signed the will in the presence of the
witnesses. Without that statement, the attestation clause is fatally defective.
This defect is not cured by proof aliunde or even by a judicial finding based upon
such proof that the testator did in fact sign the will in the presence of the
subscribing witnesses. That is a fact required by law to be stated in the
attestation clause itself, and it is settled that where it is not so stated it cannot be
established by evidence aliunde, and that where such evidence has been
admitted, even without opposition, it should not be given the effect intended. (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Quinto vs. Morata, 54 Phil., 481.) In the
case last cited this Court had the following to say:
It is vigorously contended on behalf of the appellant, that the alleged
1
defect of the attestation clause has been cured by oral evidence, which
was admitted without opposition on the part of the appellee. This
contention cannot be sustained. The doctrine of this court with reference
to statute of frauds is not applicable to wills. The statute of frauds relates
to contracts and agreements. The subject of wills and testaments and
the formalities surrounding their execution are governed by separate
and specific provisions of Act No. 190.
An examination of section 618 of Act No. 190, prior to, and after its
amendment by Act No. 2645, shows clearly that the legislature intended
to exclude evidence aliunde tending to establish that the will has been
executed and attested in conformity with the requirements of the law,
where such compliance does not appear on the face of the will itself.
Prior to its amendments, section 618 contained the following saving
clause: "But the absence of such form of attestation shall not render the
will invalid if is as proven that the will was in fact signed and attested as
in this section provided."
51
The most outstanding feature of the amendment of said section 618 by

Act No. 2645 is the elimination of said saving clause and the greater
emphasis laid on the formalities as to signatures and the attestation
clause. There can be no doubt, therefore, that the intention of the
legislature, in eleminating said clause, was to exclude evidence aliunde,
and that where such evidence was admitted without opposition, it should
not be given effect and thus defeat the manifest intention of the
legislation in amending said section 618.
Section 618 of Act No. 190, as amended, should be given a strict
interpretation. In the case of Uy Coque vs. Navas L. Sioca (43 Phil.,
405) this court, speaking of the construction to be given to said section,
said:
Statutes prescribing the formalities to be observed in the
execution of wills are very strictly construed. As stated in 40
Cyc., at page 1097, "A will must be executed in accordance with
the statutory requirements; otherwise it is entirely void. All these
requirements stand as of equal importance and must be
observed, and courts cannot supply the defective execution of a
will. No power or discretion is vested in them, either to superadd
other conditions or dispense with those enumerated in the
statutes. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407.)
It is also urged that the lower court should not have entertained the opposition of
Rosa Abaja, who had no legal interest in the proceeding. But it does not appear
that timely objection to the said opposition was made in the court below, and it is
settled that the mere fact that a stranger has been permitted to oppose the
allowance of a will is not a reversible error and does not invalidate the
proceedings where no objection is interposed by any of the parties in interest.
(Paras vs. Narciso, 35 Phil., 244.) It is true that in the course of Rosa Abaja's
declaration, counsel for appellant made some manifestation tending to question
the admissibility of her testimony. But it is not clear that the remark was meant to
be an objection to the opposition itself. And in any event, even without
opposition, the lower court could not have legally allowed the will in question, for
under section 618 of Act No. 190, as amended by Act No. 2645, no will shall be
valid to pass any estate, real or personal., nor charge or affect the same unless
the attestation clause conforms to the requirements therein provided, and the
imperactive language of the Rules of Court (Rule 77, section 9 [a]) directs that
the will "shall be disallowed" if not executed and "attested as required by law."
In view of the foregoing, the order appealed from is affirmed, with costs against
the appellant.
Ozaeta, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.
52
G.R. No. L-46097
October 18, 1939
TEOFILA ADEVA VIUDA DE LEYNEZ, petitioner,

vs.
IGNACIO LEYNEZ, respondent.
Conrado V. Sanchez and Ambrosio Padilla for petitioner.
Ilao and Enriquez for respondent.
LAUREL, J.:
This is a petition for a writ of certiorari to review the decision of the Court of
Appeals affirming the decision of the Court of First Instance of Mindoro denying
probate of the will of the deceased Valerio Leynez, on the ground that its
attestation clause does not conform to the requirements section 618, as
amended, of the Code of Civil Procedure.
The attestation clause of the will is worded as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima
voluntad y testamento en presencia de todos y cada uno de nosotros, y
a ruego de dicho testador, firmamos el presente cada uno en presencia
de los otros, o de los demas y de la del mismo testador Valerio Leynez .
El testamento consta de los (2) paginas solamente.
The question presented is, under section 618, as amended, of the Code of Civil
Procedure, is this attestation clause legally sufficient? The pertinent portion of
this section of the Code is as follows:
. . . the attestation shall state the number of sheets or pages used, upon
under his express direction, in the presence of three witnesses, an the
later witnessed and signed the will and all pages thereof in the presence
of the testator and of each other.
The alleged defect in the attestation clause of the controverted will is that it fails
to state that the testator and the three witnesses signed each and every page of
the will in the manner prescribed by law, because it merely states "firmanos el
presente cada uno en presencia de los otros, o de los demas y de la del mismo
testador Valerio Leynez." In deciding this question the Court of Appeals,
however, ruled:
A la luz de las jurisprudencias arriba citadas en la clausada de

atestiguamiento discutida en el asunto de autos no encontramos un
cumplimiento sustantial del requisito exigido por la ley, de que en ella se
haga constar que el testador y los testigos han firmado unos en
presencia de otros, todas y cada una de las paginas usadas del
testamento, requisito que no se puede establecer por medio de su
prueba aliunde.
Against this conclusion of the Court of Appeals, petitioner puts forward the
contention that it has decided a question of substance in a way not probably in
accord with the law and the applicable decisions of this court (Rule 47,
paragraph e [1] of Supreme Court.) The rule of liberal construction of the
applicable law should, petitioner avers, be held to apply in the case at bar, and
in support of her content on she invokes a long array of cases (Abangan vs
.Abangan, 40 Phil., 476; Avera vs. Garcia and Rodriguez, 42 Phil., 145; Aldaba
vs. Roque, 43 Phil., 378; Unson vs .Abella, 43 Phil., 494; Fernandez vs. Vergel
de Dios, 46 Phil., 922; Nayve vs. Mojal, 47 Phil., 152; De Gala vs .Gonzalez, 53
Phil., 104; Rey vs. Cartagena, 56 Phil., 282; Dichoso de Ticson vs. De
Gorostiza, 57 Phil., 437; Sebastian vs. Paganiban, 59 Phil., 653; De Guzman vs.
Celestino, G.R. No. 35273, April 25, 1932; Policarpio vs. Baltazar, G.R. No.
36349, November 14, 1932; Malate vs. Olea, G.R. No. 36154, December 16,
1932; In re Estate of Jennings, 1933, G.R. No. 38758). To this line of cases
those of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939, and Grey vs. Fabie,
G.R. No. 45160, May 23, 1939, may perhaps be added. Respondent, on the
other hand, equally invokes a number of cases wherein, he contends, the rule of
strict construction was made to prevail. (Uy Coque vs. Navas L. Sioca, 43 Phil.,
405; In re Estate of Neuark, 46 Phil., 841; Sao vs. Quintana, 48 Phil., 506;
Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481; Rodriguez
vs. Alcala, 55 Phil., 150.)
This Court has already taken notice of these different views within, in Dichoso
de Ticson vs. De Gorostiza (57 Phil., 437, 439-440), it frankly made the following
observation : "The truth is that there have been, noticeable in the Philippines two
divergent tendencies in the law of wills the one being planted on strict
construction and the other on liberal construction. A late example of the former
views may be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil.,
150), sanctioning a literal enforcement of the law. The basic case in the other
direction, predicated on reason, is Abangan vs. Abangan ([1919], 40 Phil., 476),
oft-cited approvingly in later decisions." It is fairness to recognize the existence
of opposing currents of legal thought, a situation which perhaps has brought
about a certain degree of confusion in this field. It is also fairness to avow,
however, that a more careful examination of the cases will show that, while the
two tendencies mentioned in easily discernible, the conflict in many cases is
more apparent than real, and the variance, if at all, in the application of the
principles involved was due in some instances to the marked differentiation of
53
facts and the consequent personal or collective criteria in particular

cases.lwphi1.nt
We have taken pains to examine the numerous cases relied upon by the
petitioner and those relied upon by the respondent, and while we do not deem it
necessary to make a detailed comparison between them, we find no difficulty in
selecting what we consider is the reasonable rule to apply in this case at bar. It
is, of course, not possible to lay down a general rule, rigid and inflexible, which
would be applicable to all cases. More than anything else, the facts and
circumstances of record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular execution of the will,
and the instrument appears to have been executed substantially in accordance
with the requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to probate,
although the document may suffer from some imperfection of language, or other
non-essential defect. This, in our opinion, is the situation in the present case,
and we, therefore, hold that the requirement that the attestation clause, among
other things, shall state "that the testator signed the will and every page thereof
in the presence of three witnesses, and that the witnesses signed the will in the
presence of the testator and of each other," is sufficiently complied with, it
appearing that the testator and the witnesses signed each and every page of the
will according to the stipulation of the parties. (Record on Appeal, stipulation, pp.
10, 14, 15); and this fact being shown in the will itself, and there being,
furthermore, no question raised as to the authenticity of the signature of the
testator and the witnesses.
An attestation clause is made for the purpose of preserving, in permanent form,
a record of the facts attending the execution of the will, so that in case of failure
of the memory of the subscribing witnesses, or other casualty, they may still be
proved. (Thompson on Wills, 2 ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose of the law. The lawmaking body, in recognition of the dangers to which testamentary dispositions
are apt to be subject in the hands of unscrupulous individuals, has surrounded
the execution of the wills with every solemnity deemed necessary to safeguard
it. This purpose was indicated when our legislature provided for the exclusion of
evidence aliunde to prove the execution of the will. We should not, however,
attribute the prohibition as indicative of a desire to impose unreasonable
restraint or beyond what reason and justice permit. It could not have been the
intention of the legislature in providing for the essential safeguards in the
execution of a will to shackle the very right of testamentary disposition which the
law recognizes and holds sacred. The pronouncement of this Court in Abangan
vs. Abangan (40 Phil., 476, 479), expresses the sound rule to which we have
recently adhered in principle. (Rodriguez vs. Yap, G.R. No. 45924, promulgated
May 18, 1939; and Grey vs. Fabie, G.R. No. 45160, promulgated May 23, 1939):
The object of the solemnities surrounding the execution of wills is to

and testaments and to guaranty their truth and authenticity. Therefore
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.
It follows that the writ of certiorari should be, as it is hereby, granted and the
judgment of the Court of Appeals reversed, with the result that the controverted
will, Exhibit A, of the deceased Valerio Leynez, shall be admitted to probate. So
ordered, with costs against the respondent-appellee. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz, and Concepcion, JJ., concur.
54
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 parte praying 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
55
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".
56
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:
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.
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.
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.
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
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ.,
concur.
Teehankee, J, is on leave.
57
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
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.
(Sgd.) "ROSENDA CORTES

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
(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
58
G.R. No. 42258
September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitionerappellant,

vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending
resolution: That of January 29, 1935, praying for the reconsideration of the
decision of the court and that of the same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts
relied upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and
surname on the spaces of the will where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated
therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer
in a physical or mental condition to make it.
We have again reviewed the evidence to determine once more whether the
errors assigned by the oppositor in her brief have not been duly considered,
whether some fact or detail which might have led us to another conclusion has
been overlooked, or whether the conclusions arrived at in our decision are not
supported by the evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health until
September 1, 1933. She had a slight cold on said date for which reason she was
visited by her physician, Dr. Florencio Manuel. Said physician again visited her
three or four days later and found her still suffering from said illness but there
was no indication that she had but a few days to live. She ate comparatively well
and conserved her mind and memory at least long after noon of September 7,
1933. She took her last nourishment of milk in the morning of the following day,
September 8, 1933, and death did not come to her until 11 o'clock sharp that
morning.
The will in question was prepared by Attorney Marciano Almario between 11 and
12 o'clock noon on September 7, 1933, in the house of the testatrix Leoncia
Tolentino, after she had expressed to said attorney her desire to make a will and
bequeath her property to the petitioner Victorio Payad in compensation
according to her, for his diligent and faithful services rendered to her. Victorio
Payad had grown up under the care of the testatrix who had been in her home
from childhood. The will was written by Attorney Almario in his own handwriting,
and was written in Spanish because he had been instructed to do so by the
testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose Ferrer
Cruz, Perfecto L. Ona and other persons who were then present. The testatrix
approved all the contents of the document and requested Attorney Almario to
write her name where she had to sign by means of her thumbmark in view of the
fact that her fingers no longer had the necessary strength to hold a pen. She did
after having taken the pen and tried to sign without anybody's help. Attorney
Almario proceeded to write the name of the testatrix on the three pages
composing the will and the testatrix placed her thumbmark on said writing with
the help of said attorney, said help consisting in guiding her thumb in order to
place the mark between her name and surname, after she herself had
moistened the tip of her thumb with which she made such mark, on the ink pad
which was brought to her for said purpose. Said attorney later signed the three
pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and
Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it
successively and exactly under the same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will
on September 7, 1983, and that she never made said will because she was no
longer physically or mentally in a condition do so, the oppositor cites the
testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney
Almario in the morning of September 7, 1933, in the house of the deceased
where they were then living, and that the first time that they saw him there was
at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino
was already dead, Gliceria Quisonia stating that on that occasion Almario
arrived there accompanied only by woman named Pacing. They did not state
that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto
L. Ona, the instrumental witnesses of the will. Said two witnesses, however,
could not but admit that their room was situated at the other end of the rooms
occupied by the deceased herself and by the petitioner Victorio Payad, and that
their said room and that of Victorio Payad are separated by the stairs of the
house; that Gliceria Quisonia saw the deceased only once on the 7th and twice
59
on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from
9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated
that in the morning of September 7th, she prepared the noonday meal in the
kitchen which was situated under the house. Under such circumstances it is not
strange that the two did not see the testatrix when, according to the evidence for
the petitioner, she made her will and signed it by means of her thumbmark. In
order to be able to see her and also Almario and the instrumental witnesses of
the will, on that occasion, it was necessary for them to enter the room where the
deceased was, or at least the adjoining room where the will was prepared by
Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix
was already so weak that she could not move and that she could hardly be
understood because she could no longer enunciate, making it understood
thereby, that in such condition it was absolutely impossible for her to make any
will. The attorney for the oppositor insists likewise and more so because,
according to him and his witness Paz de Leon, two days before the death of the
testatrix, or on September 6, 1933, she could not even open her eyes or make
herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the
testimony of the petitioner-appellant or that of Attorney Almario and the three
instrumental witnesses of the will because, to corroborate them, we have of
record the testimony of the physician of the deceased and the accountant
Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome
of these proceedings does not affect them in the least. The two testified that two,
three or four days before the death of the testatrix, they visited her in her home,
the former professionally, and the latter as an acquaintance, and they then
found her not so ill as to be unable to move or hold a conversation. They stated
that she spoke to them intelligently; that she answered all the questions which
they had put to her, and that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the
oppositor's motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That
upon her death, the deceased left a letter signed by herself, placed in a stamped
envelope and addressed to Teodoro R. Yangco, with instructions not to open it
until after her death; (2) that there are witnesses competent to testify on the
letter in question, in addition to other evidence discovered later, which could not
be presented at the trial; (3) that in the letter left by the deceased, she transfers
all her property to Teodoro R. Yangco stating therein that, upon her death, all
the property in question should become Yangco's. From this alleged fact, the
oppositor infers that the deceased never had and could not have had the
intention to make the will in question, and (4) that said oppositor knew of the
existence of said letter only after her former attorney, Alejandro Panis, had been
informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named
Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed
another supplementary motion alleging that she had discovered some additional
new evidence consisting in the affidavit of Attorney Gabino Fernando Viola
wherein the latter affirms that Victorio Payad had called him on September 5,
1933, to prepare the will of the deceased but he did not do so because after
seeing her he had been convinced that she could not make a will because she
had lost her speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,
substantially affirming the facts alleged by the oppositor, are attached to both
motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and
cannot be newly discovered evidence, and are not admissible to warrant the
holding of a new trial, because the oppositor had been informed of the facts
affirmed by Attorney Jose Cortes in his affidavit long before this case was
decided by this court. It is stated in said affidavit that in May, 1935, Attorney
Jose Cortes revealed to the attorney for oppositor the fact that the deceased
had left a letter whereby she transferred all her property to Teodoro R. Yangco,
and the judgment was rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly
discovered evidence inasmuch as the judgment of the lower court was favorable
to her. She, however, overlooks the fact that she also appealed from the
decision of the lower court and it was her duty, under the circumstances, to
inform this court of the discovery of said allegedly newly discovered evidence
and to take advantage of the effects thereof because, by so doing, she could
better support her claim that the testatrix made no will, much less the will in
question. Said evidence, is not new and is not of the nature of that which gives
rise to a new trial because, under the law, in order that evidence may be
considered newly discovered evidence and may serve as a ground for a new
trial, it is necessary (a) that it could not have been discovered in time, even by
the exercise of due diligence; (b) that it be material, and (c) that it also be of
such a character as probably to change the result if admitted (section 497, Act
No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense
that, even considering it newly discovered evidence, it will be sufficient to
support the decision of the lower court and modify that of this court. It is simply
hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia
Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered
60
important or material evidence but this court has not the letter in question before
it, and no attempt was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give
pursuant thereto is not more competent than that of Attorney Jose Cortes
because, granting that when he was called by Victorio Payad to help the
deceased Leoncia Tolentino to make her will and he went to her house on
September 5, 1933, the deceased was almost unconscious, was unintelligible
and could not speak, it does not necessarily mean that on the day she made her
will, September 7, 1933, she had not recovered consciousness and all her
mental faculties to capacitate her to dispose of all her property. What Attorney
Gabino Fernando Viola may testify pursuant to his affidavit in question is not and
can not be newly discovered evidence of the character provided for by law, not
only because it does not exclude the possibility that testatrix had somewhat
improved in health, which possibility became a reality at the time she made her
will because she was then in the full enjoyment of her mental faculties,
according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona,
Victorio Payad and Marciano Almario, but also because during the hearing of
these proceedings in the Court of First Instance, Attorney Viola was present,
and the oppositor then could have very well called him to the witness stand,
inasmuch as her attorney already knew what Attorney Viola was to testify about,
yet she did not call him. The last fact is shown by the following excerpt from
pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your
Honor, I should like to present as the last witness Attorney Fernando
Viola who was called by the petitioner Victoria Payad to prepare the will
of the deceased in his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando
Viola? Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you
wish to call to the witness stand? Mr. PANIS: Your Honor, he is busy
in the branch, presided over by Judge Sison.
COURT: And when can he come? Mr. PANIS. I am now going to find
out, Your Honor. If the other party, Your Honor, is willing to admit what
said witness is going to testify in the sense that said Attorney Fernando
Viola went to the house of the deceased on September 5, 1933, for the
purpose of talking to the deceased to draft the will upon petition of Mr.
Victorio Payad; if the other party admits that, then I am going waive the
presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other
party would not admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the
witness, Mr. Viola, without prejudice to the other party's calling the
witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney
Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a
witness in her favor, it might have been because she considered his testimony
unimportant and unnecessary, and at the present stage of the proceedings, it is
already too late to claim that what said attorney may now testify is a newly
discovered evidence.
For the foregoing considerations, those stated by this court in the original
decision, and the additional reason that, as held in the case of Chung Kiat vs.
Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered
evidence is limited to ordinary cases pending in this court on bills of exceptions,
the motion for reconsideration and a new trial filed by the oppositor are hereby
denied, ordering that the record be remanded immediately to the lower court. So
ordered.
Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.
61
G.R. No. L-20392
November 20, 1923
ANDREA UY COQUE, ET AL., plaintiffs-appellees,

vs.
JUAN NAVAS L. SIOCA, ET AL., defendants-appellants.
Crossfield and O'Brien for appellants.
Ruperto Kapunan for appellees.
STREET, J.:
portion, to wit, lot No. 1 of paragraph D, declared to be paraphernal property of

Geronima; (3) requiring the defendants to surrender to the plaintiffs, as heirs of
said Geronima Uy Coque, or to her administrator, the sum of P152,800, which
the court found to be one-half the value of a quantity of hemp which had
pertained to the community estate and which constituted part of the property
found to have been fraudulently transferred by Navas to one of his
codefendants, also requiring the defendants to surrender one-half of certain
other property described in the complaint, or its equivalent; (4) and, finally,
requiring the defendants to pay the costs of the action. From this judgment the
defendants brought the cause to this court by means of a bill of exceptions,
signed by the judge of the lower court in response to an order from this court
obtained in an action for the writ of mandamus.
This action was instituted in the Court of First Instance of the Province of Samar
by the plaintiffs, in the character of collateral heirs of Geronima Uy Coque,
deceased, against Juan Navas L. Sioca, husband of the said Geronima Uy
Coque, and his codefendants, for the purpose of securing a decree declaring
fictitious certain transfers of property made by Juan Navas L. Sioca to his
various codefendants and to have the same set aside as fraud upon the
plaintiffs; to compel the said Navas to effect a division of the ganancial property
which had pertained to himself and Geronima Uy Coque during her life; to
declare the plaintiffs owners of the half of said property which pertained to
Geronima; to require the said Navas to deliver such half to the plaintiffs; to
compel him further to pay to the plaintiffs a sum of money as damages, together
with costs of suit; and to obtain such further and general relief as might be
appropriate in the premises.
At the outset it should be noted that the attorney for the appellees challenges
the jurisdiction of this court over the appeal on substantially the same grounds
and considerations that were urged in opposition to the application for the writ of
mandamus in the case of Juan Navas L. Sioca et al., vs. Honorable N.
1
Capistrano, as Judge of the Court of First Instance of Samar, G.R. No. 19903.
However, a majority of the justices participating in the decision of this case are
of the opinion now, as in the mandamus case, that the court has jurisdiction.
Upon this point the writer of the present opinion and Mr. Justice Avancea are
not in accord with the court, but in conformity with the resolution of the majority,
we now proceed to deal with the case upon its merits as appearing upon the
record on appeal.
In due time the defendants answered, admitting the character and heirship of
the plaintiffs as heirs of Geronima Uy Coque, deceased, as well as certain other
points alleged in the complaint. By way of special defense the defendants set
forth in their answer that the transfers made by Juan Navas L. Sioca and which
are the subject of attack in the complaint were made by him to his respective
codefendants for a good consideration and in the lawful exercise of his powers
as a manager of the conjugal partnership, composed of himself and his wife,
Geronima Uy Coque, deceased. Other matters involved in the complaint were
for the most part made subject of general denial; but by way of counterclaim the
defendants prayed the court to compel one of the plaintiffs, namely, Andrea Uy
Coque, to return to the defendant Navas certain jewelry and money pertaining to
the community estate, alleged to have been appropriated by her.
In the year 1883 a Chinese boy, named Lim Sioca, then of the age of about
seventeen years, arrived in the Philippine Islands and found his way to
Catbalogan, in the Province of Samar. Originally without means, he contrived in
course of time to get a start as keeper of a tienda, a business which was
conducted by him for a time upon a petty sale. He says that he had a Chinese
wife whom he had left behind in China, but this was no obstacle to the formation
of an irregular matrimonial alliance with Geronima Uy Coque, a woman
apparently of Chines ancestry but born in this country. In the year 1904 the wife
in China died; and soon thereafter Lim Sioca, who had by this time adopted the
Christian name of Juan Navas, in addition to his original patronymic, was united
in Christian marriage with Geronima. No children were born to the pair, and they
lived together harmoniously until the death of Geronima which occurred on
August 21, 1919.
At the hearing the trial judge entered a judgment in favor of the plaintiffs,
comprising the following features, namely, (1) a declaration of the nullity of the
transfers in question; (2) a declaration that certain property specified in the
opinion pertained to the ganancial partnership composed of the defendant
Navas and his wife Geronima, and that the same should be divided equally
between said Navas and the heirs of Geronima, with the exception of a certain
It appears that Geronima Uy Coque, with her brothers and sisters, had inherited
a respectable property, the management of which had fallen to her, as the eldest
of the children. She was thus able to furnish a home for herself and her husband
and apparently a place in which to do business. The testimony for the plaintiffs
also tends to show that the capital used in the business thenceforth conducted
by the conjugal partnership came in great part, if not entirely, from Geronima Uy
62
Coque; but Juan Navas Lim Sioca, whom we shall hereafter designate by the
shorter name of Sioca, says that he had about P1,500 of his own money at the
time he entered into relations with Geronima. However this may be, it is evident
that the business conducted by him received a notable impulse from the alliance
with her, and her resources and intelligence supplied one of the bases of the
success which followed. The evidence shows that, throughout the joint lives of
the spouses, as means were accumulated and money was available to let out at
interest, the management of loan was confided to her, and apparently she
otherwise took an intelligent and helpful part in the conduct of business.
In the course of years, owing to the intelligence and economical mode of life of
the pair, the invested capital continued to grow, and the business was extended,
with the result that by the time of the death of Geronima Uy Coque a great
wholesale business had been established in Catbalogan. Dependent upon and
contributory to this establishment was a retail tienda in Catbalogan and
numerous other stores which Sioca had acquired or established in various small
ports on the Island of Samar accessible by water to Catbalogan. To keep in
touch with these Sioca maintained a fleet, from the home port of Catbalogan, of
more than a half dozen motor boats, launches and lorchas. By means of this
admirable apparatus of commerce, Sioca did a business of a varied character,
but he specialized in the buying and selling of hemp; and upon one of his lots in
Catbalogan he maintained a press for the baling of hemp, where great quantities
of this commodity, purchased in the local market or brought in by his boats from
other ports and places, were baled and prepared for export through the Manila
market. Under the conditions described it is evident that when the prolonged and
phenomenal rise in the price of hemp occurred several years ago, owing to
conditions brought about by the World War, Sioca was in possession of a
business which, if properly managed, could not fail to make him rich.
In the peak year of 1918 the sales of the wholesale establishment alone were
reported to the Collector of Internal Revenue for purposes of taxation at more
than P572,000, without reference to the business done in the different stores
contributory to that establishment; and Sioca admits that at the time he sold out
the main business to Marcelo Navas there was on hand in Manila and
Catbalogan, and included in the sale, sufficient hemp to realize the gross
amount of P235,152.25.
In the period of fifteen or twenty years during which the business of Sioca and
his wife was expanding in the manner stated, they came to feel the need of
finding some Chinese youths whom they might bring up according to their own
system and whom they might prepare for the larger duties incident to the
conduct of the business. This desire was felt no doubt the more for the reason
that the pair were childless. Moreover, they were rather close and sparing in
their expenditures, and it seemed to them that Chinese boys brought in from
China would be less expensive than native help. On one occasion Geronima
complained that their employees who were natives of this country were
extravagant because they smoked cigarettes so much and were accustomed to
throw away the stubs before they were half smoked up. In conformity with this
idea, a Chinese boy named Tiu Quim Chiu was brought to the Islands in the
year 1907. This boy claims to be the son of one Tiu Sin Set, who had been
associated with Sioca in business. Nevertheless after the boy arrived in the
Islands he went into the establishment of Sioca in Catbalogan and was brought
up in Sioca's household in all respects as if he were Sioca's son.
On March 14, 1910, Tiu Quim Chiu was taken to the parish priest in the pueblo
of Tarangan and was there baptized with the Christian name of Marcelo Navas.
The certificate of baptism recites that the boy was then thirteen years of age and
that he was the son of natives from the City of Amoy. The certificate upon which
he was passed through the Customs by the immigration authorities indicates
that he is somewhat older than appears from the certificate of baptism. The
testimony of witnesses for the plaintiffs is to the effect that the baptism of
Marcelo was done at the instance of Sioca and wife. However this may be, in
the family circle Marcelo was always treated as a child of said spouses; and he
called Geronima mother. Moreover, he ate at their table, and was educated at
the expense of the same persons.
Between the years 1913 and 1918, three other boys were brought in at intervals
and became likewise members of the Sioca circle. These youths are Tan Cao,
Lim Isiu and Tan Siu. As these boys got big enough to do anything, they were
set to different appropriate duties by Sioca, when not in school; and they grew
up as if a part of Sioca's establishment. Sioca claims that one of these boys, Lim
Isiu, is his own son, having been born to Sioca's Chinese wife in China about
the year 1900. If this is true it supposes that in the year 1899 Sioca was in
China, and he claims to have made a visit to China during that year. Other
testimony tends to show that Sioca was in Samar during the whole of the year
1899 and his presence at that time in the province is fixed with considerable
certainty by one of the witnesses, supposing the witness to speak the truth, by
the circumstance that Sioca was arrested that year for dealing in contraband
opium, and that he further acted as an informer to the Americans during that
year, giving them valuable information concerning the activities of the
insurrectos in that province. The trial judge, upon considering the evidence,
came to the conclusion that Lim Isiu is not in fact a son of Sioca but a nephew,
being in fact the son of one of Sioca's brothers. The point whether Lim Isiu is the
son or the nephew of Sioca is of no importance; and it is sufficient to record that
he was treated as an actual or adopted son by Sioca very much as the other
three of whom mention has been made.
As Sioca's business began to expand in the early years, he had around him
more than one native of China who assisted in different capacities in the conduct
of the business; and in the year 1909 the internal-revenue license was taken out
63
in such form as to show that the business of Sioca was a partnership conducted,
under the style of "Tiong Juat," by four persons, to wit, Sioca himself and three
others, namely, Tiu Sin Set, Tan Yengco, (Yana), and Ignacio Tan Ingco; and
oral testimony given by witnesses for the defendants shows that such a
partnership had existed from 1907. However, no scrap of writing has ever
existed proving the information of any such partnership. The trial judge fond as a
fact that this partnership was purely fictitious, and we do not hesitate to say that
in our opinion this conclusion is an irresistible inference from the evidence. It is a
matter of common knowledge that persons having the status of Chinese
merchants are freely passed through the customhouse by the immigration
authorities when they wish to go to China and return upon visits to their native
land, and they are allowed to bring into this country the members of their
Chinese families, a privilege not conceded to Chinese laborers. As a
consequence of this Chines residents here have a strong desire to become
certified as merchants; and where a man like Sioca has around him a number of
faithful helpers, not infrequently of kin, the temptation to admit such persons into
the fictitious relation of partners is too strong to be resisted by persons of the
clannish character of the Chinese people. It is believed therefore that in order to
permit the three persons above mentioned to have the status of merchants and
to visit China from time to time Sioca became party to the fictitious declaration of
partnership referred to.
An additional incentive undoubtedly was that Sioca wanted to get in more boys
from China, and more than one of the three who came in later were, if we
mistake not, brought in by some one or another of the titular partners in the
"Tiong Juat." The business, it is needless to say, in all its ramifications and
details continued under the guidance of Sioca, without the least external
indication that any interest in the business whatever was vested in any other
person beside himself, and so the situation remained until the climax came in
1919.
That the partnership was a mere figment of imagination and made little or no
impression upon the mind of Sioca, is indicated by the circumstance that when
he was called as a witness and asked when "Tiong Juat" was established, he
said that it was created in 1904, when all other witnesses who had testified
about the matter placed it in 1907; and it was only after careful questioning on
the part of his skillful and discerning attorney that he was brought around to
modify his statement and declare, in conformity with his other witnesses, that
this partnership had been created in 1907.
In 1915 one of the supposed partners died in China, and later still another died;
and in the latter part of 1917 Sioca thought it desirable to take out the internalrevenue license in the future exclusively in his own name. However, the
authorities of the Bureau of Internal Revenue in that province required some sort
of a showing to the effect that the other three in whose names the license had
appeared from 1909 to that date no longer had any interest in the business. In
order to meet this requirement four persons got together in Catbalogan in
January of the year 1918 in order to put an end to the supposed partnership.
These four persons were Sioca himself and Tan Yengco (Yana), as original
members, and two other persons, Tan Tiongco, assuming to act as
representative of his deceased brother, Ignacio Tan Ingco, and Tiu Quim Chiu
(Marcelo Navas) assuming to act in representation of his father Tiu Sin Set.
Upon this occasion a document, dated January 24, 1918, was drawn up and
acknowledged before a notary public, purporting to put an end to the: "Tiong
Juat," or partnership to which reference has been made. The material recitals
and statements contained in this document are these:
1st. That by a verbal agreement between us made on the first of
January of the year 1907, we have formed a general mercantile
partnership under the name and style of "Tiong Juat" for the purchase
and sale of merchandise from Europe and of this country, doing
business in the first avenue in the populated part of Catbalogan, Samar,
P.I.
2nd. That the partners Ignacio Tan Yengco and Tiu Sin Set having died
in their respective towns in China, we have by mutual agreement
appointed Mr. Juan Navas Lim Sioca to make an inventory and a
liquidation of the partnership.
3rd. That in view of the fact that the inventory and liquidation have
already been finished, said partnership known as "Tiong Juat" is hereby
declared dissolved, and the aforementioned agreement void and of no
effect, each receiving the share corresponding to him, as found in the
liquidation.
4th. And in order that each of us may freely engage in his respective
trade and business without any difficulty, we have executed these
presents for such purposes as may be proper.
Among recitals contained in the document from which we have quoted two are
especially noteworthy, namely, first, the statement that the partnership in
question was created by verbal agreement on January 1, 1907; and, secondly,
the acknowledgment that each member thereof, or his representative, was
receiving, contemporaneously with the execution of the document, the part in
the assets of the partnership which pertained to him according to the result of a
liquidation already effected by Sioca. Armed with this paper, Sioca caused the
internal-revenue license to be changed and thereafter the business appeared in
the office of the Bureau of Internal Revenue as being conducted in the name of
Sioca alone.
64
The next incident important to be noted consists in the execution by Geronima

Uy Coque of the document Exhibit 15, dated March 11, 1918, and
acknowledged on the same date before a notary public. This document is a
gratuitous deed of transfer by which Geronima Uy Coque transfers, or purports
to transfer, to her husband her entire half interest in the community property
pertaining to herself and husband. Said document is in terms as follows:
I, Geronima Uy Coque, wife of the Christian Chinaman Juan Navas,
Sioca, both residents of the municipality of Catbalogan, Province of
Samar, P.I., and his legitimate heir of all the property acquired or to be
acquired during his marriage, by these presents make known, that I
convey and transfer one-half of the interest I may have in the aforesaid
property to my aforesaid husband Juan Navas Sioca, who may dispose
as absolute owner of all said property, whether personal or real, and of
the business in which he is engaged, and he may exercise his right to
transfer the same to other persons and make its distribution among his
children as he pleases. Be it also known that I stand responsible to my
said husband Juan Navas Sioca, his heirs and successors in interest,
for all the aforesaid property which corresponds to me by inheritance,
the title to which I bind myself to defend now and forever against all
lawful claims that may be presented.
Considered with reference to its juridical effects, this document is of course a
patent nullity, being in direct contravention of two explicit provisions of the Civil
Code, namely, article 1334, which declares that all donations between spouses
made during the marriage shall be void; and article 1458, which expressly
prohibits the husband and wife from selling their property to each other except
under certain conditions not material to be here noted. Worthless, therefore, as
this document is for the purposes for which it was intended, it is nevertheless
important as affording indubitable proof of the motives that actuated the parties;
for we find it there stated that the transfer was made in order that the transferee,
Juan Navas Sioca, might have absolute power of disposal, not only of the real
estate but of the business in which he was engaged, "and that he might exercise
his right to transfer the same to other persons and make its distribution among
his children as he pleases." (Emphasis ours.)
The word children as used in this document can refer to no other persons than
the four Chinese boys from whom Sioca and his wife had informally adopted;
and the design evidently was to enable Sioca the more freely to dispose of the
property for the purpose, among others, of the division of it among those boys.
Subsequent developments were in complete harmony with this design.
About a year after the document last above mentioned was executed, the health
of Geronima Uy Coque began rapidly to fail, and she died on August 21, 1919,
after having been helpless for several weeks or months. In evident anticipation
of this event, and as we believe with the purpose of getting practically all of his
property beyond the reach of the collateral heirs of his wife, Sioca executed a
series of documents, by which he stripped himself of nearly everything he
possessed. The transferees in these several documents were the four Chinese
boys who had been brought up, or were being brought up, by Sioca in his
household and in his business. In addition to these, one other Chinese, one Tan
Po, is named. One of these, documents (Exhibit D) appears to have been
executed on June 27, 1919, and it was acknowledged on June 30 of the same
year, before a notary public. The other conveyances here referred to (Exhibits A,
B, C, E, and F) were executed upon various dates between July 2, 1919, and
July 11 of the same year. Taking them up in order, we find that by the
conveyance Exhibit A Sioca transferred to Tan Siu for the stated consideration
of P4,000 two lots in Catbalogan, with the residential house standing on one and
a warehouse located on the other. By the conveyance Exhibit B Sioca
transferred to Tan Cao for the stated consideration of P1,000 a lot in the
municipality of Tarangnan. By the conveyance Exhibit C the same Sioca, for the
recited consideration of P2,500, transferred to the same Tan Cao all the interest
which Sioca possessed in a tienda belonging to Sioca in the municipality of
Tarangnan. By the conveyance Exhibit D Sioca transferred to Lim Isiu, for the
recited consideration of P10,000, a parcel of land with the buildings and
improvements thereon in the town of Catbalogan. By the conveyance Exhibit E,
the same Sioca, for a recited consideration of P18,000, transferred to Marcelo
Navas (Tiu Quim Chiu), all of Sioca's right, title and interest in the business
located in Catbalogan. In this sale is included all of the furniture and all credits
pertaining to Sioca and relating to the business which he had previously
conducted in Catbalogan, with the exception of the boats. By the conveyance
Exhibit F, the same Sioca, for a recited consideration of P12,000, transferred to
the Chino Tan Po, resident of the municipality of Wright, in the Province of
Samar, the seven boats which were being used by Sioca in the conduct of his
business.
By the documents above mentioned Sioca disposed, on paper at least, of nearly
everything of value that he and his wife had possessed; and there was included
in one of these transfers certain paraphernal property of the wife. To make it
perfectly clear that he had no further interest in the properties thus conveyed, he
caused to be drawn up an affidavit (Exhibit G), in which he enumerated the few
remaining pieces of property, of comparatively small value, which he still owned.
This document was acknowledged before a notary public on August 18, 1918, or
three days before Geronima Uy Coque died.
Notwithstanding the changes thus made in the nominal ownership of the various
properties conveyed by Exhibits A to F, inclusive, Sioca remained in possession
of all of said properties and continued to do business as before. Publicity was
not given in any way to these changes of ownership, and the very existence of
65
said transfers was unknown to the heirs of Geronima Uy Coque for several
months.
youth eighteen years of age, the sum of four thousand pesos (P4,000)
for his salaries.
In the second paragraph of article 1413 of the Civil Code it is declared that no
alienation in fraud of the wife which the husband may make of property
belonging to the conjugal partnership shall prejudice her or her heirs; and in
conformity with that precept this action was primarily instituted to set aside the
conveyances above mentioned as fraudulent. That the action is in this respect
well founded and that said conveyances were made with a view to putting these
properties beyond the reach of Geronima Uy Coque and her heirs is in our
opinion clearly apparent from the proof and capable of most complete
demonstration. In this connection we shall quote a lengthy passage from the
appealed decision which supplies an answerable argument against the good
faith and honesty of the transactions in question. In the brief for the appellants in
this court some of the details stated in this excerpt have been challenged, but a
careful perusal of the evidence will show that the more important facts herein
stated are proved by a clear preponderance of the evidence, and even the minor
details are supported by testimony at least as credible as the denials and
assertions contained in the testimony for the appellants.
The purchasers are members of the household of the vendor, and

dependents upon him for support.
Says the trial judge in the appealed decision:

The defendant Juan Navas Sioca sold the properties in question for the
price of forty-eight thousand two hundred and seventy pesos (P48,270).
On the date of the sale, he had two thousand nine hundred ninety-nine
(2,999) bales of hemp stored in Manila, and six hundred thirty six (636)
bales and one thousand piculs of loose hemp in Catbalogan, making a
total of eight thousand two hundred eighty-five piculs, which, at the rate
of twenty-four pesos and fifty centavos (P24.50) per picul, are worth two
hundred two thousand nine hundred eighty-two pesos and fifty centavos
(P202,982.50).
The eight thousand two hundred eighty-five (8,285) piculs of hemp were
included in the sale for the aforesaid price of P48,270.
Juan Navas Sioca, in explaining why he sold all his business, together
with all the properties and goods pertaining thereto, says that he owed
the purchaser, Tan Po, seventeen thousand pesos (P17,000); that he
owed the Chinaman Tiu Sin Set, father of the purchaser, Tiu Quim Chiu,
fifteen thousand ninety-nine pesos and ninety-three centavos
(P15,099.93); that he owed the same purchaser, Tiu Quim Chiu, the
sum of eight hundred pesos (P800.); that he owed the purchaser, Lim
Isiu, a youth nineteen years old, the sum of one thousand five hundred
pesos (P1,500) for his salaries; that he owed the purchaser, Tan Siu, a
Said Tan Po, a resident of Wright, is the purchaser of the seven vessels
mentioned in paragraph "A" for the price of twelve thousand pesos
(P12,000). The deed of sale executed on July 2, 1919, is Exhibit F of the
plaintiff and Exhibit 3 of the defense. This purchaser Tan Po had a small
retail store of cigars, pots, etc., in the municipality of Wright. His
business was of such a nature and in such a condition as not to require
the acquisition of any vessel. This Tan Po bought the seven vessels for
a large business, such as that of Juan Navas, and the vessels being of
no use for the purchaser, were left at the vendor's place.
According to the testimony of the vendor Juan Navas and the
purchaser, Tan Po, the former owed the latter the sum of seventeen
thousand pesos (P17,000), and the seven vessels were sold for twelve
thousand pesos (P12,000), as payment on account of the seventeen
thousand pesos (P17,000). But no document or competent proof was
introduced to establish this debt.
There is, besides, the circumstance that, after the sale of the vessels,
the vendor Juan Navas Sioca has been using them as formerly.
In the month of June, 1920, after the execution of said deed of sale, this
purchaser Tan Po made a voyage from Catbalogan to Wright on board
the launch Biri one of the vessels sold, and paid as freight for said
voyage the sum of twenty pesos (P20) to the engineer? Martin Banasta
who made that voyage by order of Juan Navas Sioca, to whom the
engineer turned over, later, the twenty pesos (P20).
In the months of September and October of the year 1919, and June of
1920, the vendor Juan Navas Sioca carried timbers from Tacloban to
the Catbalogan Trade School on board the launches sold, under a
contract with the principal teacher of the Trade School, named Vicente
Macasiran, who paid Juan Navas Sioca, through the provincial
treasurer, the sum of four hundred twenty pesos (P420) for the
transportation of said timbers.
The Chinaman Tan Siu is the purchaser of the properties described in
paragraph B for four thousand pesos (P4,000), Exhibit A of the plaintiffs
and 4 of the defense, which is the deed of sale executed on July 11,
66
1919. This purchaser, Tan Siu, is eighteen years old; he came to the
Philippines 1915 at the age of thirteen years.
According to the evidence of the plaintiffs, Tan Siu was bought for five
hundred pesos (P500) by Juan Navas and his wife, and taken to the
Philippines by the Chinaman Yana Tan Yengco, whose child he appears
to be in the certificate issued to him when he landed in this country. And
according to the evidence of the defense, Tan Siu is the son of said Tan
Yengco. But now the undisputed fact is that, since his arrival, Tan Siu
has resided always in the house of Juan Navas Sioca and never in that
of Tan Yengco, from whom he did not receive a parental treatment.
According to Juan Navas Sioca, he sold the three properties in question
to Tan Siu, who on the date of the sale was seventeen years of age,
because he owed him the sum of four thousand pesos (P4,000) as
salaries for his services. So that this young man, who did not yet know
how to work when he arrived, being then but thirteen years old, earned
the sum of four thousand pesos (P4,000) from 1915 to the date of the
sale, that is, during three years approximately. Just what specific salary
per month Juan paid to this young man, it does not appear. Nor was any
mention made in the evidence of the amount or amounts this young
employee had taken during those three years on account of his salaries.
This debt of four thousand pesos (P4,000) was not proven by any
documentary evidence. About this debt there is nothing but the mere
testimony of the seller Juan Navas Sioca.
The Chinaman Tan Cao is the purchaser of the properties mentioned in
paragraph C for three thousand five hundred pesos (P3,500) Exhibits B
and C of the plaintiffs, which are the deeds of sale executed on July 8,
1919. This purchaser, Tan Cao, is in China, and was there prior to the
commencement of this action. According to the evidence of the
plaintiffs, he was also bought by Juan Navas Sioca and his wife. His age
does not appear. According to the deeds of sale in his favor, Exhibits B
and C, he is of age; but the attorney and notary who prepared Exhibits B
and C, is the same author of the deeds of sale in favor of Tan Siu and
Lim Isiu, Exhibits A and D, wherein he made it appear that they were of
age when they were, in fact, only seventeen ang eighteen years old.
It is a fact, about which there is no question, that this purchaser Tan
Cao never resided in any other place than the store and house of Juan
Navas Sioca.
In the document Exhibit B, the vendor Juan Navas Sioca admits having
received, at the execution thereof, one thousand pesos (P1,000), which
was the price of the lot mentioned in Exhibit B, and in Exhibit C, that is
the deed of sale of the store, the vendor, Juan Navas Sioca, states that
he had previously received two thousand five hundred pesos (P2,500),
which was the purchase price of the business or store.
Lim Isiu is the purchaser of the properties mentioned in paragraph D for
the price of ten thousand pesos (P10,000), the deed of sale which,
Exhibit D of the plaintiffs and Exhibit 6 of the defense, was executed on
June 27, 1919. This purchaser was nineteen years old at the time of the
execution of said document. He came from China to Catbalogan in 1913
when he was thirteen years of age.
According to the evidence of the defense, that is, according to the
testimony of Juan Navas Sioca and Lim Isiu himself, the latter is a son
of Juan Navas Sioca. But the court finds that the preponderance of
evidence is to the effect that Lim Isiu is not Juan Navas Sioca's child,
but his nephew. Lim Isiu was born of a Chinawoman in China in 1900,
and the supposed father was in Catbalogan, without having left the
Philippines in the years 1898 to 1901. The very treatment which Lim Isiu
received from Juan Navas Sioca in these transactions is a corroboration
of the fact that Lim Isiu is not a son of Juan Navas Sioca.
According to the document Exhibit D, the payment was made in two
installments; five thousand pesos (P5,000) prior to the execution of the
document and the balance of five thousand pesos (P5,000) at the
signing thereof. But according to the purchaser, the payment was made
as follows: For the first payment the purchaser borrowed two thousand
pesos (P2,000) from Nicolas Tan, and one thousand five hundred pesos
(P1,500) from a Chinaman named Simo. Both amounts, which, together
with the one thousand five hundred pesos (P1,500), due from the
vendor to the purchaser for the latter's salaries, as found in the
liquidation made at the execution of the deed, constituted full payment
of the five thousand pesos (P5,000), were furnished or lent by the
father-in-law of the purchaser named Tan Po.
These loans, apparently unconditional and without any security, are not
shown by any document.
This purchaser began to live with the vendor in the year 1913, upon his
arrival from China at the age of thirteen years. According to Navas
Sioca, this Lim Isiu began to earn, as employee, four hundred pesos
(P400) in the first year, and five hundred pesos (P500) thereafter. This
Lim Isiu went to China in 1917, where he married, and returned to
67
Catbalogan a few days prior to this transaction. So that Lim Isiu could
not have served as an employee for more than three years computed
from 1913, when he was thirteen years old, until the date of the sale.
Aside from the fact that the amount of the salary given is not in
proportion to the small service which this youth could have rendered, if
the expenses for the round trips, the marriage, and other personal
expenses are taken into consideration, which Lim Isiu had to pay with
money from his master, Juan Navas, on account of his salaries, the
amount of one thousand five hundred pesos (P1,500), found as balance
in the liquidation made of such salaries upon his return from China,
cannot be justified.
This purchaser has been, for the last two years, in charge of the store in
Wright referred to in paragraph G. He bought for ten thousand pesos
(P10,000), without any money of his own, the camarin (shed) and the
hemp press, which had nothing to do with his business, and required a
large capital to operate, which he did not have. This purchaser did not
take possession of said properties, which continued in the hands of the
vendor Juan Navas Sioca.
The defendant Tiu Quim Chiu, known also as Marcelo paragraph "E"
under numbers 1, 2, and 3, for nineteen thousand five hundred ninety
pesos (P19,590), the documents of which were executed on June 7,
1919, Exhibit E of the plaintiffs and 11 of the defense, as to property No.
1, and on February 16, 1920, Exhibit 14 of the defense as, to No. 2. No
document was presented concerning the purchase of property No. 3.
This purchaser is a young man twenty-three years of age. According to
the evidence of the plaintiffs, he was, like Tan Siu and Tan Cao, bought
by Juan Navas Sioca. And according to the evidence of the defense, Tiu
Quim Chiu is a son of a Chinaman Tiu Sin Set. But it is a fact, proven
and undisputed, that this Tiu Quim Chiu arrived at Catbalogan from
China in 1907; that the spouses Juan Navas Sioca and Geronima Uy
Coque had him baptized on March 14, 1910, in the parish church of
Tarangan, Samar, giving him the name of Marcelo Navas Sioca, which
they caused to appear in the baptismal certificate; that since his arrival
from China he has been living in the house of the spouses as adopted
child, enjoying a treatment and consideration as such until the date of
the transaction in question; that during the said period of time he was
studying in the public schools of the Government, wherein he reached
the second year of High School in 1918, when he stopped due to
sickness; that while in the house and store of Juan Navas Sioca, his
status was that of a real child, performing duties of trust and confidence.
An examination of all of the transactions involved in this case clearly
shows that this Tiu Quim Chiu has won Juan Navas' great distinction
and confidence to such a degree that their interests can be said to have
become identified.
According to the explanation given by the purchaser, the payment was
made as follows: Fifteen thousand ninety-nine pesos and ninety-three
centavos (P15,099.93) was the debt due from the vendor to Tiu Sin Set,
father of the purchaser, and eight hundred pesos (P800) was the value
of the house in Tarangan, built by the purchaser on the lot of the vendor.
Both amounts were applied on the payment of the nineteen thousand
five hundred ninety pesos (P19,590). Nothing was said about the three
thousand six hundred ninety pesos and seven centavos (P3,690.07)
lacking to complete the payment of nineteen thousand five hundred
ninety pesos (P19,590).
No complete evidence was presented of the aforesaid debt of fifteen
thousand ninety-nine pesos and ninety-three centavos (15,099.93).
The sale of the business, the gross receipts of which amounted to five
hundred seventy-two thousand five hundred fifteen pesos and twentysix centavos (P572,515.26) in 1918, and to three hundred nineteen
thousand five hundred seventy-eight pesos and eighteen centavos
(P319,578.18) in 1919 (property No. 1 of paragraph E), included the
furniture, all the debts and credits in favor of, and against, said
business, with all the hemp and rice in stock in the warehouse and
stores, as well as the books of the business, specially the eight
thousand two hundred eighty-five (8,285) piculs of hemp in the
warehouse appraised at two hundred two thousand nine hundred
eighty-two pesos and fifty centavos (P202,982.50), a part of the goods
in stock, that were sold for the price of eighteen thousand pesos
(P18,000). The purchaser Tiu Quim Chiu immediately after the
execution of the deed of sale, Exhibits E and 11, went to China to get
married, or to take his wife to Catbalogan in October, 1919, free from all
cares about the large business and properties which he had just bought,
as if he had acquired nothing, leaving the properties purchased in the
hands of the vendor himself. If Tiu Quim Chiu were the real owner of the
properties in question, he could not have left in the manner he did.
A very important circumstance is to be noted. The purchase of the
business by Tiu Quim Chiu did not include the basis of said business,
that is, the hemp press and the camarin (shed) in which it was installed,
which properties appear to have been purchased by Lim Isiu (Exhibits D
and 6). The press and the camarin were bought by Lim Isiu, who did not
need them, while Tiu Quim Chiu, who needed them for his business, did
not purchase them. But in spite of this division of the ownership of these
properties which should not be separated, the important fact is that the
68
business and the hemp press continued to operate, united to each

other, as if they belonged to one single owner, in the same way they did
before the transaction.
We entirely agree with the trial judge that these conveyances are fictitious, in the
sense that they were made upon fictitious considerations; and they were without
a doubt executed for the purpose of defrauding Geronima Uy Coque and
defeating the rights of her heirs. Most preposterous of all, perhaps, is to suppose
that the sale of the fleet of boats to Tan Po was made in good faith something
for which he had no possible use and over which he has at no time exercised
the slightest dominion. And it is not pretended that he paid any cash
consideration whatever, the supposed consideration consisting of a preexisting
debt concerning which there is not the slightest documentary evidence. The
three boys, Tan Siu, Tan Cao, and Lim Isiu, could not possibly have
commanded the resources necessary to make the purchases attributed to them,
and as to two, consideration is claimed to be, in whole or in part, the value of
their unpaid salaries for past services. Of course the conveyances to these
three, as well as that made in favor of Marcelo Navas, were merely made in
furtherance of the design, already revealed in Exhibit 5, of making a division
among Sioca's "sons." Neither of these three boys has at any time exercised
any of the external indicia of ownership over the property which they claim to
have purchased, their pretense being that they leased the properties back
forthwith after purchasing them to Sioca, or let them to his successor, Marcelo
Navas.
This last named person acquired the wholesale business in Catbalogan with all
the property and outstanding credits pertaining thereto, but no steps were taken
by him at the time of the transfer to assert ownership or obtain possession. It is
true that after he had made two trips to China, coming back in the autumn, he
began to take a more intimate part in the conduct of business, and he claims
that his vendor Sioca had now become his agent in the management of things.
Also at the end of the year the internal revenue license for the conduct of the
business was taken out in the name of Marcelo Navas, and an important
business house in Manila with whom Sioca had business relations was informed
of the change.
It is not claimed that Marcelo gave present value for what he received; the
consideration is said to consist in part of a debt owing to Marcelo's father, Tiu
Sin Set, from the liquidation of the famous partnership "Tiong Juat," of which
something has already been said. One would suppose that after that fictitious
entity had been wiped completely off the slate by the document executed in
January, 1917, nothing more would have been heard of it, especially as it was
stated in that document that each of the partners was receiving his share in the
proceeds per the liquidation effected by Sioca. But the memory of that fictitious
entity has been revived for the purpose of serving as a justification of these
transfers by Sioca; and it is asserted that Sioca did not pay the amounts due his
former partners upon liquidation as stated in the document Exhibit 15, which
indebtedness remained outstanding until they began to press him in 1919. It was
for this reason, so Sioca asserts, that it became necessary for him to sell out
everything so hurriedly in June and July, 1919, in order to satisfy those claims,
which being accomplished, Sioca was left with little or nothing and dependent
upon Marcelo Navas even for employment. It is impossible, upon a careful
examination of the evidence before us, to give credence to such a pretension.
We do not question the power of the defendant Sioca to make a valid
conveyance, disposing of any property belonging to the conjugal partnership,
either during the line of his wife or afterwards. That power Sioca undoubtedly
had, as is fully established in numerous decisions of this court, beginning with
the case of Nable Jose vs. Nable Jose (41 Phil., 713). But the proper exercise of
the husband's power as administrator of the community estate supposes that he
acts in good faith, and where a transfer is made upon a fictitious consideration
and for the purpose of defrauding the wife and her heirs, the transaction is
devoid of validity, not because of any lack power on the part of the husband, but
because of the inherent nature of the transaction itself.
Much of the oral proof submitted in this case has reference to the point whether
"Tiong Juat" was a real association in the nature of the partnership between four
persons mentioned as participants therein, or whether it was a purely artificial
arrangement conceived for the purpose of enabling its alleged members freely
to make trips back and forth to China in the character of merchants and
incidentally to enable them to import young Chinamen as members of their
respective families. This proof relative to "Tiong Juat" is of course pertinent to
the question whether the sales which are under attack in this case were made in
good faith and as a result of a necessity imposed upon Sioca by the liquidation
of said association; but it does not otherwise affect the case, for it is to be
remembered here that the supposed partnership had been dissolved before the
conveyances in question were made, and all of its property had, by such
dissolution, become vested exclusively in Sioca and in his hands was
community property.
The foregoing exposition of the facts of the case, as we see them, renders
unnecessary any elaborate discussion of the numerous assignments of error
made in this court by the appellant, and a few words will suffice to dispose of the
greater part of said errors. The first assignment is directed to an error of the
court in admitting certain testimony objected to by the attorney for the appellants
in the lower court. The objection is based upon the relevancy of the testimony
referred to; and in the analysis of the case, we have ignored said testimony as
immaterial. Its admission therefore does not constitute reversible error, if error in
any sense.
69
The second assignment is directed to the error of the court in refusing, over the
offer made by the appellants' attorney, to permit the introduction of certain proof
concerning the constitution of "Tiong Juat," the names of the associates who
created it, and the amount due from Sioca to the alleged partners at the time of
its dissolution. We believe that the testimony thus offered was legally relevant as
bearing upon the good faith of the subsequent sales which were made by Sioca,
ad the trial judge was technically in error in rejecting it. Nevertheless, we note
that his Honor did not consistently maintain his position with respect to the
exclusion of the items of proof offered; and at a later stage of the trial the same
facts which the court had excluded, as indicated, in this assignment, were
developed from the same and other witnesses with abundant iteration. It results
that whatever error may have been committed in connection with the exclusion
of the testimony to which this assignment as directed is not reversible error.
Assignments Nos. 3 to 7, inclusive, are directed to supposed errors of the court
in sustaining objections to certain testimony or in striking out evidence upon the
points mentioned in said assignments. The testimony thus ruled out is before us
in the record, and has been considered by this court for what it is believed to be
worth. With respect to the eight assignment practically the same observation
may be made as noted above concerning the second. Assignments Nos. 9 to
13, inclusive, are directed to supposed erroneous findings of the court upon
points of fact which in our opinion are either immaterial or sustained by a
preponderance of the evidence. The same is true of the errors assigned under
Nos. 16, 17, 19, 20, 21, 22, 23, and 24. Assignments Nos. 15, 18 and 25 are
directed to questions of law, or mixed questions of law and fact, which are
disposed of adversely to the appellants' contention as a consequence of the
conclusions stated in this opinion upon the main issues.
Assignments Nos. 14 and 26 in our opinion are meritorious, and the errors
therein suggested will be pointed out, but for purposes of convenience our plan
of treatment will follow the order of the dispositive part of the appealed decision.
The trial judge first pronounces the several conveyances made by Sioca to Tan
Po, Tan Siu, Tan Cao, Lim Isiu, and Tiu Quim Chiu to be of no effect. The
declaration of the nullity of these instruments is correct; but it will be noted that
when this declaration is taken in relation with subsection (3) of the last
paragraph of the decision, the practical effect is that the conveyances referred to
are nullified only to the extent of the one-half interest of Geronima Uy Coque in
those properties.
The trial judge next declares that all of the properties described in paragraphs A
to G, inclusive, of the decision, with the exception of lot No. 1 of paragraph D, is
community property of Sioca and wife. The property thus declared to be
community property includes everything that had been transferred by Sioca to
his codefendants, except lot No. 1 of paragraph D, as well as several parcels of
little value which were retained by Sioca unsold; and we are of opinion that no
reversible error prejudicial to the defendants was committed in this
pronouncement. With the sole exception of lot 1 of paragraph D, everything here
declared to be community property, so far as appears, was acquired by Sioca
after he entered into marital relations with Geronima Uy Coque and the whole
must be presumed to be community property (art. 1407, Civ. Code). It is true
that Sioca says that he had a capital of P1,500 when he married Geronima, but
this point cannot be considered as established; and no question is made upon it
in the appellants' brief.
Concerning lot 1 of paragraph D, it appears that this property originally belonged
in common to Geronima Uy Coque and her brothers and sisters, having
descended to them from their parents. There were six of these heirs, four of
whom, Juan, Geronima, Andrea and Segundo Uy Coque, were each entitled to
one-fourth of one-half and one-sixth of the other half, and two of whom,
Valentina Tingzan and Teodoro Tingzan, were entitled to one-sixth of one-half.
Now, Andrea Uy Coque, Valentina Tingzan, and Teodoro Tingzan assigned their
portions to Geronima Uy Coque, which gave her seven-twelfths, and the other
five-twelfths were purchased by Sioca. It results that, in addition to the seventwelfths which pertained to Geronima as her separate (paraphernal) property,
she was entitled to one-half of the remainder as her ganancial interest. The
exact extent of her participation in this lot was therefore nineteen twenty-fourths;
and in declaring her to be owner of only three-fourths (or eighteen twentyfourths) the trial judge erred indeed, but the error was prejudicial to the heirs of
Geronima Uy Coque (who have not appealed) rather than to the appellants. The
argument submitted in this court against the correctness of the finding that
Geronima was the owner of the portion of this lot just stated is rested manly, if
not entirely, upon the supposed effects of the document Exhibit 5, by which
Geronima attempted to convey all her interest in the community property of
Geronima was not included in that transfer, it is evident that said document
would, as already demonstrated, be legally ineffective, as being in contravention
of the express provisions of law.
The defendant Sioca disclaims any interest whatever in the item of property
noted in subdivision 9 of paragraph F of the appealed decision and which was
declared by the trial judge to be community property, consisting of a tienda
located in the barrio of Silanga, Samar. Sioca says that this tienda belongs to
Tan Suico, Suya, in partnership with Tima. From acts of ownership exercised by
Sioca with respect to this tienda it might be inferred that it is his property and
pertains to the community estate. Supposing, however, that the Chinos
mentioned by Sioca are its real owners, the judgment in this case will not be
binding upon them since they are not parties. The same observation holds good
with respect to item No. 7, a tienda in the municipality of Villareal, of which Sioca
says that he owns only one-half, the other half belonging to one Siwa. None of
the parties mentioned by Sioca as owners or coowners with him in connection
70
with these properties have intervened to assert their claims in this case; and the
situation must be left with the observation that as they are not parties they will
not be absolutely bound by the decree.
After having made his pronouncement as to the nullity of the conveyances made
by Sioca to his codefendants and as to the ganancial character of the properties
above referred to, the trial judge proceeds to give effect to the legal
consequences of his findings; and to this end he orders Sioca and his
codefendants to pay to the plaintiffs, or to administrator of Geronima Uy Coque
as their representative, the sum of P152,800, being one-half of the proceeds of
the hemp included in the sale made by Sioca to Marcelo Navas. This order is in
our opinion incorrect not only as regards the persons upon whom this obligation
is placed but as regards the amount due.
The legal effect of requiring Sioca and his codefendants to pay the sum of
money mentioned is to make all of the defendants jointly liable for said sum,
whereas the liability for this money cannot properly be extended beyond the two
persons (Sioca and Marcelo Navas) who made away with the proceeds of the
hemp. There is no proof that Tan Po, Tan Cao, Lim Isiu, and Tan Siu had
anything to do with that act; and there is nothing to indicate that there was any
general conspiracy such as should make all of the defendants equally liable for
the proceeds of the hemp.
The court estimated the total value of the hemp which was on hand at the time
of the sale of the business to Marcelo Navas at P305,600, one-half of which, or
P152,800, represented the share of Geronima Uy Coque. We are of the opinion
that the data contained in the proof is not adequate to sustain this estimate in its
entirety; and we think it safer to fix the value of this hemp at the precise amounts
which Sioca admits having received for it in money, or P253,152.25. That the
amount of money so received by him could not have been less is proved not
only by his admission, but by the statistics irrefutably showing that hemp in a
quantity sufficient to realize that sum, or more, was deposited in Manila or
Catbalogan at the time of the sale.
While it is undeniable that Sioca converted into money hemp of the value stated,
he says that there were debts outstanding in Manila against him to the extent of
P235, 152.25 and that as he had to pay off these debts, there was a net balance
of only P18,000 for Marcelo Navas. And this is the breath of air by which this
despoiler of his wife's estate would dissipate responsibility for this large sum of
money. Not one scratch of paper, such as a receipt or old statement of account
from any creditor whatever, from which the existence of a debt of any sort could
be even remotely inferred, has been introduced in evidence. Yet it is certain that
if there had been any such debts paid off by him, he could readily have
produced documents in support of such fact. We believe him to be a fraudulent
spoliator of a large fortune against whom everything is to be presumed, in

accordance with the maxim omnia prsumuntur contra spoliatorem.
A single circumstance suffices to show the purely false and artificial character of
Sioca's pretense to have paid debts to the extent claimed. It will be remembered
that in the document of July 7, 1919, executed by Sioca in favor of Marcelo
Navas, the consideration was stated to be P18,000, paid to the entire
satisfaction of the vendor. Now, the hemp was at all sold for weeks, or even
months, after that document was executed, yet it will be noted that when the
sale was finally effected the hemp brought precisely such an amount that when
debts to the amount of P235,152.25 were paid off, there remained a balance of
exactly P18,000 to be returned over to the new owner. In other words it is
apparent that the amount of the supposed debts was arbitrarily fixed to tally with
the consideration stated in the prior conveyance of July 7, 1919, and this was
done, oddly enough, in total disregard of other elements of value in the property
sold.
Estimating the value of the hemp, or its proceeds, at P235,152.25, the halfinterest of Sioca therein will be found to be P126,576.13, leaving an equal
amount for the estate of Geronima Uy Coque. This, and not the amount found
by the trial judge, constitutes the portion pertaining to her collateral heirs in the
proceeds of the hemp, subject, however, to the usufructuary interest of Sioca,
concerning which more will be said further on in this opinion.
Subsections 2 and 3 of the dispositive parts of the appealed decision are
concerned with the disposition of the real property involved in the litigation; and
the effect of this part of the decision is to require the defendants to surrender to
the administrator of Geronima Uy Coque three-fourths of lot 1 of paragraph D
and one-half of the other parcels. A more correct way of wording the judgment
with respect to these lands would have been to declare the collateral heirs of
Geronima Uy Coque to be the owners in her right of the portions of property
indicated and to require the defendants to respect the rights of said heirs as
coowners; and in so far as the appealed decision disposes, or seems to
dispose, otherwise, it must be modified.
Furthermore, though the point has not been brought into discussion in the
assignments of error, it is necessary to point out that Sioca's usufructuary
interest in the property which he transferred to the several defendants
undoubtedly passed to each transferee respectively. (Art. 480, Civ. Code.) The
result is that each transferee named in the several deeds became the lawful
owner of the properties conveyed in those deeds to the extent of the one-half
interest which lawfully pertained to Sioca, plus his usufructuary interest in onehalf of the remainder; and said deeds can be declared fraudulent against the
plaintiffs only in so far as relates to what is left.
71
At this point it becomes desirable to say a few words concerning the character of
the action. The complaint states a complex cause of action, namely, first, to set
aside various conveyances as having been executed by the defendant Sioca in
fraud of his wife and her heirs; and, secondly, to compel Sioca to account for
and surrender the deceased wife's share in the community property or, as we
take it, to enforce a liquidation of the community estate. That an action in each
of these aspects is maintainable goes without saying, and there was no
impropriety in joining the two in a single proceeding, as was desirable and even
necessary in this case.
The defendants interposed an answer to the merits in the court below, and no
objection was there made at any time by demurrer or otherwise to the form of
the proceeding. Furthermore, no error has been assigned in this court directed
to any defect either of form or substance in the proceeding. Nevertheless it is
suggested in the lengthy discussion under assignment No. 26 that if the plaintiffs
desired to call Sioca to account for the property pertaining to his wife, they
should have proceeded against him as her administrator; and it is stated in the
brief that Sioca was administrator of his wife at the time this action was
instituted. Our attention has not been called to any proof in the record showing
the fact to be as stated, but we may doubtless take judicial notice of it, as the
records of this court show, in a former proceeding that came to us upon appeal,
that the same Sioca had been removed as administrator of his wife and another
person appointed in his stead. If the defendants had desired to invoke the
supposed rule of law discapacitating the plaintiffs from maintaining this action so
long as Sioca occupied the position of administrator of his wife, the question
should have been presented in their answer. As no objection was made in the
Court of First Instance to the maintenance of the action in its aspect of a
proceeding to compel the defendants to account for the deceased wife's share
in the community property, the objection will not now be entertained in this court.
But we think there is another sound and sufficient reason why it was proper for
the court to entertain the present action not only for the purpose of decreeing the
nullity of the questioned deeds but for the purpose of compelling Sioca and his
codefendants to surrender the property which had been appropriated by them. It
is an accepted doctrine of equity jurisprudence that when a court acquires
jurisdiction over a controversy for one purpose it will retain it for all purposes, to
the end that the litigation may be completely concluded. In this connection the
maxim is applicable that equity does nothing by halves. There can be no
question that the court could properly take cognizance of the action in its aspect
of a proceeding to set aside the fraudulent deeds, and having thus acquired
jurisdiction over the subject-matter for that purpose, no error was committed in
giving complete relief. It is quite obvious that if the court had stopped short of the
requirement that the defendants should pay over and surrender money and
property to the extent allowed by us in the present judgment, he ends of justice
would have been frustrated. A husband who has turned spoliator of his wife's
estate and who has been removed as administrator may be required to pay over
the wife's share to her legal representative and to account for such portion
thereof as he may have squandered.
The preceding discussion conducts us to the point where it is necessary to
confront the practical problem presented by the existence of the usufructuary
right of Sioca in the estate of his deceased wife and the final liquidation of the
estate into whose hands soever the property may have come; and it is evident at
once that the case is not now in a condition where we can say the last word, and
there are certain steps in the liquidation which will require further proceedings in
the court of origin.
As the spouses comprising the community partnership with which we are
concerned left neither ascendants not descendants, the surviving husband is, or
was, entitled to one-half of the deceased wife's property in usufruct (art. 837,
Civ. Code; Sarita vs. Candia, 23 Phil., 443). And as we have already seen, this
right of the husband undoubtedly passed by his transfer to his several
codefendants.
Furthermore, the wife's share in the proceeds of the hemp amounts, according
to our previous computation, to the sum of P126,576.13. One-half of this amount
is P63,288.06, which represents the unencumbered portion pertaining to the
collateral heirs, the plaintiffs in this action, and which should be immediately paid
by Sioca and his codefendant Navas to the administrator of the deceased wife. If
not duly paid, execution therefor should be issued jointly and severally against
these two only.
As to the remaining sum of P63,288.06, which pertained to Sioca in usufruct, the
plaintiffs are in law entitled to the capital, subject to the usufructuary right now
vested in Marcelo Navas. A specific portion of said sum should either be fixed,
as representing the shares of the respective parties, or other adjustment should
be attained compatible with the purposes contemplated by the law; but in any
event the parties are privileged, under article 838 of the Civil Code, to come to
an amicable agreement, if they see fit, in default of which the adjustment will be
made by judicial decision.
Again, the various defendants (except Sioca) who assert title to different pieces
of real property conveyed by him to them respectively likewise acquired his
usufructuary interest in said respective parcels, in addition to the undivided half
that pertained to Sioca as member of the community partnership. It is impossible
for us in the present state of the case to determine the value of said usufructuary
interest or to assign any specific piece of property to any of said claimants in
satisfaction thereof. This problem therefore also remains for future solution in
the ultimate liquidation of the whole estate. lawphil.net
72
By way of abbreviation of the foregoing, it is our judgment: (1) That the deeds
Exhibits A to f, inclusive, whose validity have been impugned in this cause, were
properly declared void by the trial court, as having been made in evident fraud of
the rights of the plaintiffs as collateral heirs of Geronima Uy Coque; (2) that the
defendants Juan Navas L. Sioca and Marcelo Navas (Tiu Quim Chiu) are jointly
and severally liable for the sum of P63,288.06, which they are required to pay to
the representative of Geronima Uy Coque, and in default thereof execution for
said sum may issue jointly and severally against them in due course; (3) that the
defendant Marcelo Navas (Tiu Quim Chiu) is entitled to the usufructuary right of
Juan Navas L. Sioca in another equal sum of P63,288.06, the corpus, or capital,
of which belongs to the plaintiffs; (4) That the various transferees mentioned in
the deeds Exhibits A, B, C, E and F severally acquired by those deeds an
undivided one-half interest in the several properties therein conveyed, plus the
usufructuary right of Juan Navas L. Sioca therein, and that Lim Isiu, as
transferee in the deed Exhibit D, thereby acquired an undivided one-eighth
interest in the property therein conveyed, plus the usufructuary right of Juan
Navas L. Sioca in the whole; and, finally, that the remaining interest in each of
said properties belongs to the plaintiffs; (5) that the cause be remanded for
further proceedings in which the usufructuary interest will be determined and
division of the properties in question effected in conformity with the law and
consistently with the principles settled in this decision.
Wherefore, affirming the appealed decision in so far as the same is in harmony
herewith and reversing the same in so far as the sane is inconsistent herewith,
the cause is remanded for execution and further proceedings, without special
pronouncement as to costs of this instance. So ordered.
Malcolm, Avancea, Villamor and Romualdez, JJ., concur.
73
G.R. No. L-24556
December 18, 1925
In re will of Victoria Quintana, deceased. EMILIANO S. SAO, petitionerappellee,

vs.
MAMERTO QUINTANA, ET AL., opponents-appellants.
Singzon, Salazar & Veloso and Ruperto Kapunan for appellants.
Emilio Benitez for appellee.
AVANCEA, C.J.:
The judgment appealed from allowed the probate of the will of the deceased
Victoria Quintana executed on March 22, 1924. Without going into discussion of
the points raised by the parties as to the formalities of this will we find a
sufficient reason for reversing the judgment appealed from and denying the
probate thereof.
In the attestation clause there is no statement that the witnesses to the will have
signed on the left margin of each page of the will in the presence of the testatrix.
Section 618 of Act No. 190, as amended by Act No. 2645, provides that he
attestation clause shall state the fact that the testator signed the will and all the
pages thereof, or caused another persons to place his name thereon at his
expressed direction in the presence of the three witnesses to the will, and that
the latter signed the will and all its pages in the presence of the testator and of
each other. In the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), this
court has held that the requirement that the attestation clause must contain the
statement that the witnesses signed in the presence of each other is imperative
and non-comfort in said case in support of this doctrine may be adduced for
holding that the will is also null and void when in the attestation clause it does
not appear that the witnesses to the will signed it and every page thereof on the
left margin and in the presence of the testatrix. In order to insure the authenticity
of a will, which is the object of the law, it is just as important, if not the most
important, that the witnesses should sign in the presence of the testator and of
each other.lawphi1.net
The judgment appealed from is reversed, and the probate of the will of Victoria
Quintana is denied, without special pronouncement as to costs. So ordered.
Johnson, Street, Malcolm, Ostrand, Romualdez, and Villa-Real, JJ., concur.
Johns, J., dissents.
74
G.R. No. L-26135
March 3, 1927
In re will of Eustaquio Hagoriles. PETRONILO GUMBAN, petitioner-appellee,

vs.
INOCENCIA GORECHO, ET AL., opponents-appellants.
Powell and Hill for appellants.
Padilla, Treas and Magalona and Francisco, Lualhati and Lopez for appellee.
MALCOLM, J.:
This is an appeal by the widow, Inocencia Gorecho, and eighteen other opponents,
from an order of the Court of First Instance of Iloilo probating the document
presented by Petronilo Gumban as the last will and testament of the deceased
Eustaquio Hagoriles. Among the errors assigned is included the finding of the trial
court that the alleged will was prepared in conformity with the law, notwithstanding it
did not contain an attestation clause stating that the testator and the witnesses
signed all the pages of the will.
In support of their argument on the assignment of error above-mentioned, appellants
rely on a series of cases of this court beginning with in the Matter of the Estate of
Saguinsin ([1920], 41 Phil., 875), continuing with in In re Will of Andrada ([1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with in Sao vs. Quintana ([1925]), 48
Phil., 506). Appelle counters with the citation of a series of cases beginning with
Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque
([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922, and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis,
our task is to contrast and, if possible, conciliate, the last two decisions cited by
opposing counsel, namely, those of Sao vs. Quintana, supra, and Nayve vs. Mojal
and Aguilar, supra.
In the case of Sao vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must state the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition
of the will, if it is not stated therein. It was also held that the fact that the testator and
the witnesses signed each and every page of the will can be proved also by the
mere examination of the signatures appearing on the document itself, and the
omission to state such evident fact does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type, it
would be impossible to reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we
reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decisions was concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924; the Quintana decision was thus subsequent in
point of time. And in the third place, the Quintana decision is believed more nearly to
conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 618 of the Code of Civil procedure, as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is part provided in
section 618, as amended, that "No will . . . shall be valid . . . unless . . . ." It is further
provided in the same section that "The attestation shall state the number of sheets
or pages used, upon which the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634 provides that " The
will shall be disallowed in either of the following cases: 1. If not executed and
attested as in this Act provided." The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the negative, to enforce
legislative intention. It is not within the province of the courts to disregard the
legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sao vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra.
It may not be said here that our ruling is predicated on technicality or injustice. The
will in question was formulated in a medley of three languages, Visayan, English ,
and Spanish. Suspicious circumstances surrounded the making of the will by the
bedridden old man, who is alleged to have signed it. However, no express
pronouncements on the two important questions relating to the language of the will
and the testamentary capacity of the deceased are required.
The order appealed from will be reversed, and the document Exhibit A disallowed as
a will, without special pronouncement as to costs in either instance. So ordered.
Avancea, C. J., Johnson, Street, Ostrand and Villa-Real, JJ., concur.
75
G.R. No. L-31732
February 19, 1930
Estate of the deceased Gregorio Pueblo.

CARMEN QUINTO, applicant-appellant,
vs.
MARGARITA MORATA, in substitution of Mateo Pueblo, deceased,
contestant-appellee.
estos y aquellos firmaron today y cada una de las paginas del

testamento los primeros en presencia de los segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la legalizacion del
alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y
se declara que Gregorio Pueblo murio intestado.
From the judgment the petitioner appealed and now contends:
Guevara, Francisco and Recto for appellant.

Augusto de la Rosa and Angel Arigo for appellee.
That the lower court committed an error in denying the application of the
petitioner for the probate of the will of the deceased Gregorio Pueblo.
JOHNSON, J.:
The attestation clause of the will in question (Exhibit A-1) reads as follows:
This is an appeal from a decision of the Honorable Manuel V. Moran, judge of
the Court of first Instance of Cavite, denying the application of Carmen Quinto
for the probate of the alleged will of the deceased Gregorio Pueblo, her
husband.
The application for probate was filed on October 26, 1928 by Carmen Quinto,
executrix of said will. It was a joint and mutual will of Gregorio Pueblo and his
said wife Carmen Quinto and contained a provision that the surviving spouse
shall take charge of the properties therein described and that they shall pass to
the heirs and legatees at the time of the death of the surviving spouse.
To said application an opposition was filed by Mateo Pueblo, a brother of the
deceased, on the following grounds: (1) That the attestation clause of said will
does not state the number of pages of which the will is composed, and (2) that
the attestation clause does not state that each and every page of the will was
signed by the testators in the presence of the witnesses, and that the latter
signed the same in the presence of the testators and in the presence of each
other.
Upon the issue thus raised, and after hearing the evidence, the court rendered a
judgment denying the petition on the ground that the attestation clause did not
state that the witnesses signed the will in the presence of the testators, or that
both the testators and the witnesses signed the will and each and every page
thereof in the presence of each other. In this connection the lower court said:
. . . En la clausula de atestiguamiento del testamento en cuestion, se
hace constar que los testadores firmaron el testamento en presencia de
los tres testigos instrumentales y que estos firmaron el testamento los
unos en presencia de los otros, pero no se hace constar que dichos
testigos firmaron el testamento en presencia de los testadores, ni que
Nosotros los que firmamos al final de este testamento, Florentino Joya,

Aguedo Soriano y Teodoro Bleza damos fe, de haber visto o
presenciado el acto de firmar en esta escritura o testamento de los
esposes Gregorio Pueblo y Carmen Quinto; lo firmaron ellos en nuestra
presencia, y que nosotros los testigos, lo firmamos en presencia de
cade uno de nostros, hoy 3 de noviembre de 1920. Este testamento
esta compuesto de tres fojas utiles.
As will be noted, the attestation clause contravenes the express requirements of
section 618 of Act No. 190, as amended by Act No. 2645, in two ways: First, it
fails to state that each and every page of the will was signed by the testators
and the witnesses; and, second, it fails to state that the witnesses signed each
and every page of the will in the presence of the testators.
In the case of Sao vs. Quintana (48 Phil., 506) this court held that "an
attestation clause which does not recite that the witnesses signed the will and
each and every page thereof on the left margin in the presence of the testator is
defective, and such defect annuls the will." This doctrine was restated and
reaffirmed in the case of Gumban vs. Gorecho (50 Phil., 30).
It is vigorously contended on behalf of the appellant, that the alleged defect of
the attestation clause has been cured by oral evidence, which was admitted
without opposition on the part of the appellee. This contention cannot be
sustained. The doctrine of this court with reference to statute of frauds is not
applicable to wills. The statue of frauds relates to contracts and agreements.
The subject of will and testaments and the formalities surrounding their
execution are governed by separate and specific provisions of Act No. 190.
An examination of section 618 of Act No. 190, prior to, and after its amendment
by Act No. 2645, shows clearly that the Legislature intended to exclude
76
evidence aliunde, tending to establish that the will has been executed and
attested in conformity with the requirements of the law, where such compliance
does not appear on the face of the, will itself. Prior to its amendment, section
618 contained the following saving clause: "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."
The most outstanding feature of the amendment of said section 618 by Act No.
2645 is the elimination of said saving clause and the greater emphasis laid on
the formalities as to signatures and the attestation clause. There can be no
doubt, therefore, that the intention of the Legislature, in eliminating said clause,
was admitted without opposition, it should not be given effect and thus defeat
the manifest intention of the Legislature in amending said section 618.
Section 618 of Act No. 190, as amended, should be given a strict interpretation.
In the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405) this court, speaking
of the construction to be given to said section, said:
Statutes prescribing the formalities to be observed in the execution of
wills are very strictly construed. As stated in 40 Cyc., at page 1097, "A
will must be executed in accordance with the statutory requirements;
otherwise it is entirely void. All these requirements stand as of equal
importance and must be observed, and courts cannot supply the
defective execution of a will. No power or discretion is vested in them,
either to superadd other conditions or dispense with those enumerated
in the statutes." (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407.)
The judgment appealed from, disallowing the will of Gregorio Pueblo, is in
confirmity with the facts and the law, and the same should be and in hereby
affirmed, with costs. So ordered.
Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
77
G.R. No. 103554
May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN

CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN
CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented
herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA,
NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in the
last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu before three attesting
witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa.
The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a
1
notary public, Atty. Filoteo Manigos, in the preparation of that last will. It was
declared therein, among other things, that the testator was leaving by way of
legacies and devises his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
2
Marcosa Alcantara, all of whom do not appear to be related to the testator.
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court
of First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason to another. On
May 29, 1980, the testator passed away before his petition could finally be heard
3
by the probate court. On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as special administrator of
the testator's estate, the estimated value of which was P24,000.00, and he was
4
so appointed by the probate court in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,
instituted a second petition, entitled "In the Matter of the Intestate Estate of
Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before
Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982,
herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the
5
appointment of a special administrator for his estate.
Benoni Cabrera died on February 8, 1982 hence the probate court, now known
as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued
an order for the return of the records of Special Proceeding No. 3965-R to the
archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually
assigned to Branch XII of the Regional Trial Court of Cebu where it remained
6
until the conclusion of the probate proceedings.
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the testator
was already in the poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the
7
genuineness of the signature of the testator therein.
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public Atty. Filoteo Manigos, testified that the testator executed the will in
question in their presence while he was of sound and disposing mind and that,
contrary to the assertions of the oppositors, Mateo Caballero was in good health
and was not unduly influenced in any way in the execution of his will. Labuca
also testified that he and the other witnesses attested and signed the will in the
presence of the testator and of each other. The other two attesting witnesses
8
were not presented in the probate hearing as the had died by then.
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the Court
78
that indeed Mateo Caballero executed the Last Will and

Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the
probate of his Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last Will. At the
start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem that despite
their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last
Will and Testament of Mateo Caballero and that it was executed
9
in accordance with all the requisites of the law.
Undaunted by the said judgment of the probate court, petitioners elevated the
case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein
that the will in question is null and void for the reason that its attestation clause
is fatally defective since it fails to specifically state that the instrumental
witnesses to the will witnessed the testator signing the will in their presence and
that they also signed the will and all the pages thereof in the presence of the
10
On October 15, 1991, respondent court promulgated its decision affirming that
of the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy complied
with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to
be defective is "we do certify that the testament was read by
him and the attestator, Mateo Caballero, has published unto us
the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of
the upper part of each page, as his Last Will and Testament,
and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin in
the presence of the said testator and in the presence of each
and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence

need be presented to indicate the meaning that the said will was
signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language
of the law would have it that the testator signed the will "in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely
or ideally perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial compliance with
11
the requirement of the law."
Petitioners moved for the reconsideration of the said ruling of respondent court,
12
but the same was denied in the latter's resolution of January 14, 1992, hence
this appeal now before us. Petitioners assert that respondent court has ruled
upon said issue in a manner not in accord with the law and settled jurisprudence
on the matter and are now questioning once more, on the same ground as that
raised before respondent court, the validity of the attestation clause in the last
will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after
some prefatory observations which we feel should be made in aid of the
rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree
13
the disposition of his estate after his death.
Under the Civil Code, there are
14
two kinds of wills which a testator may execute. the first kind is the ordinary or
attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
79
The attestation should state the number of pages used upon

which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of
the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a
15
testator and the attesting witness. hence it is likewise known as notarial will.
Where the attestator is deaf or deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
16
the notary public before whom it is acknowledged.
The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the testator himself. This kind of will,
unlike the ordinary type, requires no attestation by witnesses. A common
requirement in both kinds of will is that they should be in writing and must have
17
been executed in a language or dialect known to the testator.
However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not
form part of the testamentary disposition. Furthermore, the language used in the
18
attestation clause likewise need not even be known to the attesting witnesses.
The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
19
manner of the execution the same. It is a separate memorandum or record of
the facts surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the essential
20
formalities required by law has been observed. It is made for the purpose of
preserving in a permanent form a record of the facts that attended the execution
of a particular will, so that in case of failure of the memory of the attesting
21
witnesses, or other casualty, such facts may still be proved.
Under the third paragraph of Article 805, such a clause, the complete lack of
22
which would result in the invalidity of the will, should state (1) the number of
the pages used upon which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof in the presence of the
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
23
pages;
whereas the subscription of the signature of the testator and the
attesting witnesses is made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument executed by the
24
testator and attested to by the witnesses.
Further, by attesting and subscribing to the will, the witnesses thereby declare
25
the due execution of the will as embodied in the attestation clause.
The
attestation clause, therefore, provide strong legal guaranties for the due
26
execution of a will and to insure the authenticity thereof. As it appertains only
27
to the witnesses and not to the testator, it need be signed only by them.
Where it is left unsigned, it would result in the invalidation of the will as it would
be possible and easy to add the clause on a subsequent occasion in the
28
absence of the testator and its witnesses.
In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last
wishes, but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
29
respect to the formalities in the execution of wills. . . .
2. An examination of the last will and testament of Mateo Caballero shows that it
is comprised of three sheets all of which have been numbered correlatively, with
the left margin of each page thereof bearing the respective signatures of the
80
testator and the three attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on
the other hand, is recited in the English language and is likewise signed at the
30
end thereof by the three attesting witnesses hereto. Since it is the proverbial
bone of contention, we reproduce it again for facility of reference:
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will
and all its pages in the presence of the three attesting witnesses and states as
well the number of pages that were used, the same does not expressly state
therein the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other.
We, the undersigned attesting Witnesses, whose Residences

and postal addresses appear on the Opposite of our respective
names, we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO; has published unto
us the foregoing Will consisting of THREE PAGES, including
the Acknowledgment, each page numbered correlatively in the
letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on the
spaces provided for his signature and on the left hand margin,
in the presence of the said testator and in the presence of each
and all of us.
The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words
"in the presence of the testator and in the presence of each and all of us" may,
at first blush, appear to likewise signify and refer to the witnesses, it must,
however, be interpreted as referring only to the testator signing in the presence
of the witnesses since said phrase immediately follows the words "he has
signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another.
It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the
31
names of the witnesses, for the sole purpose of identification.
32
In Taboada vs. Rizal, we clarified that attestation consists in witnessing the

testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed
in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article 805
of the Civil Code for attestation clauses, fails to specifically state the fact that the
attesting witnesses the testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and every page thereof in
the presence of the testator and of each other. We agree.
It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of
the will that is here sought to be admitted to probate. Petitioners are correct in
pointing out that the aforestated defect in the attestation clause obviously cannot
be characterized as merely involving the form of the will or the language used
therein which would warrant the application of the substantial compliance rule,
as contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall
not render the will invalid if it is not proved that the will was in
fact executed and attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witness affixed
their respective signatures in the presence of the testator and of each other
since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and of
each other. The execution of a will is supposed to be one act so that where the
testator and the witnesses sign on various days or occasions and in various
33
combinations, the will cannot be stamped with the imprimatur of effectivity.
81

34
We believe that the further comment of former Justice J.B.L. Reyes regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures
appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are
facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether
all persons required to sign did so in the presence of each other
must substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections
must only be with respect to the form of the attestation or the language
employed therein. Such defects or imperfections would not render a will invalid
should it be proved that the will was really executed and attested in compliance
with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination
of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally
omits the fact that the attesting witnesses signed each and every page of the will
35
in the presence of the testator and of each other.
In such a situation, the
defect is not only in the form or language of the attestation clause but the total
absence of a specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the
present case since there is no plausible way by which we can read into the
questioned attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator of the
will and all of its pages and that said instrumental witnesses also signed the will
and every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be
revoked or relied on by respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned
or clearly inferred that the acts not stated in the omitted textual requirements
were actually complied within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed
by the attesting witnesses can be supplied by only extrinsic evidence thereof,
since an overall appreciation of the contents of the will yields no basis
whatsoever from with such facts may be plausibly deduced. What private
respondent insists on are the testimonies of his witnesses alleging that they saw
the compliance with such requirements by the instrumental witnesses, oblivious
of the fact that he is thereby resorting to extrinsic evidence to prove the same
and would accordingly be doing by the indirection what in law he cannot do
directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in
the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said
section was later amended by Act No. 2645, but the provisions respecting said
formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid
36
down in the case of Abangan vs. Abangan, where it was held that the object of
the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
37
38
disregarded. The subsequent cases of Avera vs. Garcia, Aldaba vs. Roque,
39
40
Unson vs. Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al.,
41
42
and Nayve vs. Mojal, et al. all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases of
43
44
In the Matter of the Estate of Saguinsin, In re Will of Andrada, Uy Coque vs.
45
46
47
Sioca, In re Estate of Neumark, and Sano vs. Quintana.
48
Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of
82
Gumban, the attestation clause had failed to state that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43
Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841),
and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases
beginning with Abangan vs. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation
clause must estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot
be proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on
the document itself, and the omission to state such evident facts
does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely on
one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three

outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of the
court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of
the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated
in December, 1925; the Quintana decision was thus subsequent
in point of time. And in the third place, the Quintana decision is
believed more nearly to conform to the applicable provisions of
the law.
The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part
provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section
that "The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that
"The will shall be disallowed in either of the following case: 1. If
not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard
the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming diversity of views that was
49
earlier threshed out therein. The cases of Quinto vs. Morata, Rodriguez vs.
50
51
52
Alcala, Enchevarria vs. Sarmiento, and Testate Estate of Toray went the
53
way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,
54
55
Rey vs. Cartagena, De Ticson vs. De Gorostiza, Sebastian vs. Panganiban,
56
57
58
59
Rodriguez vs. Yap, Grey vs. Fabia, Leynez vs. Leynez, Martir vs. Martir,
83

60
61
Alcala
vs.
De
Villa,
Sabado
vs.
62
63
64
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from
the strict interpretation rule and established a trend toward an application of the
liberal view.
the will was in fact executed and attested in

substantial compliance with all the requirements
65
of article 829."
66
The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil Code, with
this explanation of the Code Commission:
The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of the
testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of the
formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of
the Code of Civil Procedure before its amendment by Act No.
2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed
Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and
influence, defects and imperfections in the form
of attestation or in the language used therein
shall not render the will invalid if it is proved that
The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they draw the dividing line
with precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They
only permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can
be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of
67
the attestation clause and ultimately, of the will itself.
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and
to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate
of Mateo Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.
84
G.R. No. L-5826
April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitionerappellee,

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.
85
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 mere jurat, 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.
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 sangayong 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.
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.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo,
1981.
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.
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.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read
in full:
HULING HABILIN NI EUGENIA E. IGSOLO
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
86
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
1
Series of 1981 TAN # 1437-977-8
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
2
decedent. 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

3
properties of the decedent. 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
4
in 1965, and the mother of a legitimate child, Asuncion E. Igsolo, who
5
predeceased her mother by three (3) months.
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
6
1992. 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
7
in expressing his last wishes;" 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."
87
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
8
and the due execution of the will.
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
9
the dismissal of the petition for probate. The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
10
rendering the will void and undeserving of probate.
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
11
as "the substantial compliance rule."
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
and of one another.
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
12
of pages of the will. 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
13
14
the process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. 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
15
will. 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
88
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
16
much greater difficulty."
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
17
defect pointed out in the attesting clause is fatal." 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
18
fit to prescribe this requirement, it must be considered material."
19
Against these cited cases, petitioner cites Singson v. Florentino and Taboada
20
v. Hon. Rosal, 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
21
acknowledgment wherein the number of pages of the will should be stated.
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
22
618 of the Code of Civil Procedure. Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages
23
of the will is extant from Section 618. However, the enactment of the Civil
89
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
24
tendency] in respect to the formalities in the execution of wills." 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
25
testator."
26
Caneda v. Court of Appeals 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
27
clause in wills. Uy Coque and Andrada are cited therein, along with several
28
other cases, as examples of the application of the rule of strict construction.
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
29
check against perjury in the probate proceedings. (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
30
other, 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
31
itself." 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
32
attestation is the only textual guarantee of compliance.
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
33
pages and to prevent any increase or decrease in the pages. 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 in Singson 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
34
intercalation of notarial wills. 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
35
manner established in the will. 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.
90
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.
36
Cagro v. Cagro 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 left37
38
hand margin." While three (3) Justices 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
39
testator and any or all of the witnesses.
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 left-hand
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 ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
40
Lungsod ng Maynila." 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
41
declaring it to be his act or deed. 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
91
notary certifies that before him/her, the document was subscribed and sworn to
42
by the executor. 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
43
act. 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
44
signature appearing at the so-called "logical end" 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
45
disabused the notion that these two requirements be construed as mandatory.
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
92
G.R. No. 189984
November 12, 2012
further testified that she was the one who prepared the drafts and revisions from
Enrique before the final copy of the will was made.
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST

WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ,
Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON,
Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
1
This Petition for Review on Certiorari assails the March 30, 2009 Decision and
2
October 22, 2009 Resolution of the Court of Appeals (CA) in CA-G.R. CV No.
3
87064 which affirmed the August 26, 2005 Decision of the Regional Trial Court
of Manila, Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing the probate
of the Last Will and Testament of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B.
Lopez, and their four legitimate children, namely, petitioner Richard B. Lopez
(Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon
(Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before
4
Enriques death, he executed a Last Will and Testament on August 10, 1996
and constituted Richard as his executor and administrator.
On September 27, 1999, Richard filed a petition for the probate of his father's
Last Will and Testament before the RTC of Manila with prayer for the issuance
of letters testamentary in his favor. Marybeth opposed the petition contending
that the purported last will and testament was not executed and attested as
required by law, and that it was procured by undue and improper pressure and
influence on the part of Richard. The said opposition was also adopted by
Victoria.
After submitting proofs of compliance with jurisdictional requirements, Richard
presented the attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro;
Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized the
will, Atty. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified
that after the late Enrique read and signed the will on each and every page, they
also read and signed the same in the latter's presence and of one another.
Photographs of the incident were taken and presented during trial. Manalo
Likewise, Atty. Nolasco claimed that Enrique had been his client for more than
20 years. Prior to August 10, 1996, the latter consulted him in the preparation of
the subject will and furnished him the list of his properties for distribution among
his children. He prepared the will in accordance with Enrique's instruction and
that before the latter and the attesting witnesses signed it in the presence of one
another, he translated the will which was written in English to Filipino and added
that Enrique was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio B.
Paraon (Paraon), Officer-in-Charge of the Notarial Section, Office of the Clerk of
Court, RTC, Manila. His testimony centered mainly on their findings that Atty.
Nolasco was not a notary public for the City of Manila in 1996, which on cross
examination was clarified after Paraon discovered that Atty. Nolasco was
commissioned as such for the years 1994 to 1997.
Ruling of the RTC
5
In the Decision dated August 26, 2005, the RTC disallowed the probate of the
will for failure to comply with Article 805 of the Civil Code which requires a
statement in the attestation clause of the number of pages used upon which the
will is written. It held that while Article 809 of the same Code requires mere
substantial compliance of the form laid down in Article 805 thereof, the rule only
applies if the number of pages is reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence required. While the acknowledgment
portion stated that the will consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC observed that it has 8
pages including the acknowledgment portion. As such, it disallowed the will for
not having been executed and attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order
6
dated October 26, 2005.
Ruling of the Court of Appeals
7
On March 30, 2009, the CA issued the assailed decision dismissing the appeal.
It held that the RTC erroneously granted Richard's appeal as the Rules of Court
is explicit that appeals in special proceedings, as in this case, must be made
through a record on appeal. Nevertheless, even on the merits, the CA found no
valid reason to deviate from the findings of the RTC that the failure to state the
number of pages of the will in the attestation clause was fatal. It noted that while
Article 809 of the Civil Code sanctions mere substantial compliance with the
93
formal requirements set forth in Article 805 thereof, there was a total omission of
such fact in the attestation clause. Moreover, while the acknowledgment of the
will made mention of "7 pages including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages including the
acknowledgment portion thus, necessitating the presentation of evidence
aliunde to explain the discrepancy. Richard's motion for reconsideration from the
8
decision was likewise denied in the second assailed Resolution dated October
22, 2009.
Hence, the instant petition assailing the propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The law is clear that the attestation must state the number of pages used upon
which the will is written. The purpose of the law is to safeguard against possible
interpolation or omission of one or some of its pages and prevent any increase
9
or decrease in the pages.
While Article 809 allows substantial compliance for defects in the form of the
attestation clause, Richard likewise failed in this respect. The statement in the
Acknowledgment portion of the subject last will and testament that it "consists of
7 pages including the page on which the ratification and acknowledgment are
10
written" cannot be deemed substantial compliance. The will actually consists of
8 pages including its acknowledgment which discrepancy cannot be explained
by mere examination of the will itself but through the presentation of evidence
11
aliund. On this score is the comment of Justice J.B.L. Reyes regarding the
application of Article 809, to wit:
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
and of one another.
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
12
perjury in the probate proceedings. (Emphasis supplied)
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.
Hence, the CA properly sustained the disallowance of the will. Moreover, it

correctly ruled that Richard pursued the wrong mode of appeal as Section 2(a),
Rule 41 of the Rules of Court explicitly provides that in special proceedings, as
in this case, the appeal shall be made by record on appeal.
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.
WHEREFORE, premises considered, the petition is DENIED.
The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and
809 of the Civil Code provide:
If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them.1wphi1 (underscoring supplied)
ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
94
G.R. No. 192916
October 11, 2010
MANUEL A. ECHAVEZ, Petitioner,

vs.
DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE
REGISTER OF DEEDS OF CEBU CITY, Respondents.
BRION, J.:
Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City,
which includes Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7,
1985, Vicente donated the subject lots to petitioner Manuel Echavez (Manuel)
1
through a Deed of Donation Mortis Causa. Manuel accepted the donation.
In March 1986, Vicente executed a Contract to Sell over the same lots in favor
of Dozen Construction and Development Corporation (Dozen Corporation). In
October 1986, they executed two Deeds of Absolute Sale over the same
properties covered by the previous Contract to Sell.
On November 6, 1986, Vicente died. Emiliano Cabanig, Vicentes nephew, filed
a petition for the settlement of Vicentes intestate estate. On the other hand,
Manuel filed a petition to approve Vicentes donation mortis causa in his favor
and an action to annul the contracts of sale Vicente executed in favor of Dozen
Corporation. These cases were jointly heard.
The Regional Trial Court (RTC) dismissed Manuels petition to approve the
2
donation and his action for annulment of the contracts of sale. The RTC found
that the execution of a Contract to Sell in favor of Dozen Corporation, after
Vicente had donated the lots to Manuel, was an equivocal act that revoked the
3
donation. The Court of Appeals (CA) affirmed the RTCs decision. The CA held
that since the donation in favor of Manuel was a donation mortis causa,
compliance with the formalities for the validity of wills should have been
observed. The CA found that the deed of donation did not contain an attestation
clause and was therefore void.
The Petition for Review on Certiorari
Manuel claims that the CA should have applied the rule on substantial
compliance in the construction of a will to Vicentes donation mortis causa. He
insists that the strict construction of a will was not warranted in the absence of
any indication of bad faith, fraud, or substitution in the execution of the Deed of
Donation Mortis Causa. He argues that the CA ignored the Acknowledgment
portion of the deed of donation, which contains the "import and purpose" of the
attestation clause required in the execution of wills. The Acknowledgment reads:
BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu,
personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued
on April 10, 1985 at [sic] Talisay, Cebu known to me to be the same person who
executed the foregoing instrument of Deed of Donartion Mortis Causa before the
Notary Public and in the presence of the foregoing three (3) witnesses who
signed this instrument before and in the presence of each other and of the
Notary Public and all of them acknowledge to me that the same is their voluntary
act and deed. [Emphasis in the original.]
THE COURTS RULING
The CA correctly declared that a donation mortis causa must comply with the
4
formalities prescribed by law for the validity of wills, "otherwise, the donation is
5
void and would produce no effect." Articles 805 and 806 of the Civil Code
should have been applied.
As the CA correctly found, the purported attestation clause embodied in the
Acknowledgment portion does not contain the number of pages on which the
6
deed was written.lavvphilThe exception to this rule in Singson v. Florentino and
7
Taboada v. Hon. Rosal, cannot be applied to the present case, as the facts of
this case are not similar with those of Singson and Taboada. In those cases, the
Court found that although the attestation clause failed to state the number of
pages upon which the will was written, the number of pages was stated in one
portion of the will. This is not the factual situation in the present case.
Even granting that the Acknowledgment embodies what the attestation clause
requires, we are not prepared to hold that an attestation clause and an
acknowledgment can be merged in one statement.
That the requirements of attestation and acknowledgment are embodied in two
separate provisions of the Civil Code (Articles 805 and 806, respectively)
indicates that the law contemplates two distinct acts that serve different
purposes. An acknowledgment is made by one executing a deed, declaring
before a competent officer or court that the deed or act is his own. On the other
hand, the attestation of a will refers to the act of the instrumental witnesses
themselves who certify to the execution of the instrument before them and to the
8
manner of its execution. 1avvphi1
Although the witnesses in the present case acknowledged the execution of the
Deed of Donation Mortis Causa before the notary public, this is not the avowal
the law requires from the instrumental witnesses to the execution of a
decedents will. An attestation must state all the details the third paragraph of
Article 805 requires. In the absence of the required avowal by the witnesses
95
themselves, no attestation clause can be deemed embodied in the

Acknowledgement of the Deed of Donation Mortis Causa.
Finding no reversible error committed by the CA, the Court hereby DENIES
Manuels petition for review on certiorari.
SO ORDERED.
ARTURO D. BRION
Associate Justice
96

Art. 805

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SUCCESSION: ART.

G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

SUCCESSION: ART. 805

SUCCESSION: ART. 805

G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA

SUCCESSION: ART. 805

SUCCESSION: ART. 805

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with

SUCCESSION: ART. 805

G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,

SUCCESSION: ART. 805

SUCCESSION: ART. 805

G.R. No. L-20475

March 19, 1924

In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-appellant.

SUCCESSION: ART. 805

SUCCESSION: ART. 805

G.R. No. L-9150

March 31, 1915

MARIANO LEAO, petitioner-appellant,

SUCCESSION: ART. 805

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

SUCCESSION: ART. 805

G.R. No. L-15153

August 31, 1960

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

The will is duly acknowledged before Notary Public Attorney Timoteo de

SUCCESSION: ART. 805

SUCCESSION: ART. 805

G.R. No. L-3907

March 12, 1908

ROMAN ABAYA, petitioner-appellant,

testator was insane or otherwise mentally incapable to execute such instrument

SUCCESSION: ART. 805

SUCCESSION: ART. 805

G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

Explain this contradictory statement.

Who first signed the will?

I signed it first, and afterwards Aniceto and the others.

Who were those others to whom you have just referred?

Why do you believe Julio Javellana signed?

I believe he was signing.

SUCCESSION: ART. 805

Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.

SUCCESSION: ART. 805

G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

SUCCESSION: ART. 805

G.R. No. L-23225

February 27, 1971