G.R. No.

201787 September 25, 2013

ANALITA P. INOCENCIO, substituting for RAMON INOCENCIO (Deceased), Petitioner,

vs.
HOSPICIO DE SAN JOSE, Respondent.

DECISION

CARPIO, J.:

The Case

This petition for review seeks to annul and set aside the Decision1 dated 12 January 2012 and the
Resolution2dated 9 May 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 117009. The Decision
dismissed Analita P. Inocencios (Analita) petition for review and affirmed with modification the
Decision3 dated 21 January 2009 of the Regional Trial Court of Pasay, Branch 119 (RTC-Pasay). The
Resolution denied Analitas motion for reconsideration.

The Facts

On 1 March 1946, Hospicio de San Jose (HDSJ) leased a parcel of land located in Pasay City to
German Inocencio (German).4 The lease contract was effective for a period of one year, and was
renewed for one-year periods several times. The last written contract was executed on 31 May
1951.5 Section 6 of the lease contract provides:

Este contrato es intransferible, a menos que para ello se obtenga elconsentimiento escrito del
arrendador. (This contract is nontransferable unless prior consent of the lessor is obtained in
writing.)6

In 1946, German constructed two buildings on the parcel of land7 which he subleased. He also
designated his son Ramon Inocencio (Ramon)to administer the said property. 8

On 21 September 1990, German received a letter from HDSJ informing him that the increased rentals
shall take effect in November 1990instead of August 1990, "to give him ample time to make the
necessary rental adjustments with his sublessees."9

German passed away in 1997. Evidence on record shows that Ramon did not notify HDSJ of
Germans death. After Germans passing, Ramon collected the rentals from the sublessees, and paid
the rentals to HDSJ, and the taxes on the property. On 1 March 2001, HDSJs property administrator,
Five Star Multi-Services, Inc., notified Ramon that HDSJ is terminating the lease contract effective 31
March 2001:

We acknowledge the fact that Hospicio de San Jose has been accepting the payment of your rentals
since the demise of Mr. German Inocencio. Hence, an implied contract of lease between the two of
you exists. However, since there is no stipulation as to the period of the contract and you are paying a
monthly rental to our client, the period for the lease is on a month-to-month basis (Art. 1687). Thus as
of this date, your contract should expire on March 31, 2001.10
Page 1 of 72
Ramon then sent a letter to HDSJ dated 12 March 2001, suggesting that the lease contract be
renegotiated for the welfare of the sublessees occupying the parcel of land.11 On 3 April 2001, HDSJ
notified Ramon that the lease contract shall not be renewed because Ramon has "continually
subleased the subject premises to about 20 families (in addition to a commercial establishment) x x x
without the knowledge and consent of the essor, [HDSJ]." 12 Thereafter, HDSJ refused to accept
Ramons tender of payment of rentals.13

On 3 March 2005, HDSJ sent a letter to Ramon: (1) reiterating its stand that the lease contract was
terminated effective 31 March 2001;(2) demanding payment of 756,449.26 as unrealized fruits; and
(3) giving him 30 days to vacate the property.14 The sublessees were given written notices to vacate
within 30 days.15 HDSJ also posted a Patalastas stating that it is willing to work out an amicable
arrangement with the sublessees, although the latter are not considered as legal occupants or
tenants of the property.16 Because of this, some of the sublessees refused to pay rentals to Ramon. 17

HDSJ also entered into lease contracts with: (1) Harish Chetandas on 25 May 2005; 18 (2) Enrique
Negare on 12 April 2005;19 (3) Lamberto Estefa on 25 May 2005;20 and (4) Sofronio Chavez, Jr. on
21 May 2005.21

On 28 June 2005, HDSJ filed a Complaint before Branch 48 of the Metropolitan Trial Court of Pasay
(MeTC-Pasay) for unlawful detainer against Ramon and his sublessees.22 The complaint alleged that
Ramon and his sublessees have been illegally occupying the leased premises since 31 March 2001.
HDSJ sought the following damages:

17.1 Actual damages, in the amount of Php552,195.36, equivalent to the reasonable value of the use
and occupation of the premises from the period of 31 March 2001 until the present; and

17.2 Attorneys fees in the amount of Php50,000.00, for defendants refusal to vacate the property
and for compelling plaintiff to incur expenses to protect its interests. Furthermore, it is clear that
defendants acted in gross and evident bad faith in refusing to satisfy plaintiffs plainly valid, just, and
demandable claim.23

In his Answer dated 1 August 2005,24 Ramon claimed that:

(1) German was the owner of the two buildings constructed on the leased property as evidenced by
the building permits obtained from the government agencies and the tax declarations covering the
buildings;

(2) The Spanish lease contract, which was not translated into English or Filipino should not be
admitted as evidence in view of Section 33 of Rule 133 of the Rules on Evidence;

(3) HDSJ is estopped from raising the issue of non-transferability of the lease contract because it
admitted in its letter to Ramon that there is an existing lease agreement between the parties, even
after Germans death:

Your Lease Contract with [HDSJ], which is an implied month-to-month contract, has to be terminate
defective March 31, 2001, because by your own admission, you have continuously subleased the
subject premises to about 20 families including a commercial establishment).This was done without
Page 2 of 72
the knowledge and consent of the lessor, [HDSJ], and is in violation of the Lease Contract your father
signed with them.25 x x x.

(4) There is no prohibition against subleasing in the lease contract. Thus, under Article 1650 of the
Civil Code, Ramon is permitted to sublease the premises; and

(5) The letters sent by HDSJ to the Inocencios sometime in1990 revealed that the former already
knew that the premises were being subleased.

Ramon also claimed that HDSJ interfered with the contractual relations between him and his
sublessees.26

While the case was being tried before the MeTC-Pasay, Ramon passed away. In an Order dated 23
August 2006, the MeTC-Pasay allowed the substitution of Ramon by his wife, Analita. 27

The Ruling of the MeTC-Pasay

The MeTC-Pasay ruled in favor of HDSJ. In its Decision dated 22May 2008, the MeTC-Pasay held
that the lease contract could not be transmitted to Ramon as Germans heir in view of the express
stipulation found therein. Since there was "no lease contract between [HDSJ] and Ramon x x x the
latter cannot sublease the property."28The dispositive portion of the MeTC-Pasay Decision reads:

Premises considered, judgment is hereby rendered in favor of plaintiff and against defendant as
follows:

1. Ordering defendant Ramon Inocencio, substituted by AnalitaP. Inocencio, and Felipe Enar, and all
persons claiming rights under them to immediately vacate the premises located at 61-CSta.
Escolastica cor. F.B. Harrison St., Pasay City and to peacefully turn over the same to plaintiff;

2. Ordering the defendants to pay plaintiff reasonable compensation of 552,195.36 for the use and
occupation of the property from 01 April 2001 to 31 March 2005, and the amount of 10,512.00 a
month from 01 April 2005 up to the present, plus twelve per cent 12% interest per annum until the
premises shall have been vacated;

3.Ordering the defendants to pay plaintiff the amount of 50,000.00 as attorneys fees and costs of
suit.29

Aggrieved, Analita filed an appeal before the RTC-Pasay.

The Ruling of the RTC-Pasay

On 21 January 2009, the RTC-Pasay dismissed Analitas appeal and affirmed in toto the decision of
the MeTC-Pasay.30 It held that "even before the termination of the contract, [Ramon] had no right to
sublease the said property due to the intransferability clause in the contract."31

Analita moved for reconsideration, but it was denied in an Order dated 25 October 2010. 32 Analita
then filed a petition for review under Rule 42 of the Rules of Court before the CA.
Page 3 of 72
 The Ruling of the CA

The CA affirmed the decision of the RTC-Pasay but modified the award for damages. The dispositive
portion of the Decision reads:

WHEREFORE, foregoing considered, the assailed Decision dated21 January 2009 of the Regional
Trial Court, Branch 119, Pasay City is AFFIRMED with the MODIFICATION that the award for
reasonable compensation in paragraph 2 is pegged at Five Hundred Four Thousand Five Hundred
Seventy Six Pesos (504,576.00) representing the accumulated rentals for the period from 01 April
2001 up to 31 March2005 with six percent (6%) interest per annum, plus the further amount of Ten
Thousand Five Hundred Twelve Pesos (10,512.00) per month from 01 April 2005 until possession is
restored to respondent, also with six percent (6%) interest per annum, up to the finality of this
Decision. Thereafter, the interest shall be twelve percent (12%) until the amount is fully paid.33

Hence, this petition.

The Issues

The petition questions the following rulings made by the CA:

(1) The sublease contracts were invalid;

(2) There was no tortious interference on the part of HDSJ;

(3) Ramon did not own the buildings erected on the leased premises;

(4) HDSJ is entitled to reasonable compensation in the amount of 504,576.00 and attorneys
fees; and

(5) HDSJs action for unlawful detainer was not barred by prescription.

The Ruling of this Court

Article 1311 of the Civil Code provides:

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case
where the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the value of the property he received
from the decedent.

xxxx

We have previously ruled that lease contracts, by their nature, are not personal. The general rule,
therefore, is lease contracts survive the death of the parties and continue to bind the heirs except if
the contract states otherwise.34 In Sui Man Hui Chan v. Court of Appeals,35 we held that:

Page 4 of 72
A lease contract is not essentially personal in character. Thus, the rights and obligations therein are
transmissible to the heirs. The general rule, therefore, is that heirs are bound by contracts entered
into by their predecessors-in-interest except when the rights and obligations arising therefrom are not
transmissible by (1) their nature, (2) stipulation or (3) provision of law. In the subject Contract of
Lease, not only were there no stipulations prohibiting any transmission of rights, but its very terms
and conditions explicitly provided for the transmission of the rights of the lessor and of the lessee to
their respective heirs and successors. The contract is the law between the parties. The death of a
party does not excuse nonperformance of a contract, which involves a property right, and the rights
and obligations thereunder pass to the successors or representatives of the deceased. Similarly,
nonperformance is not excused by the death of the party when the other party has a property interest
in the subject matter of the contract.

Section 6 of the lease contract provides that "this contract is nontransferable unless prior consent of
the lessor is obtained in writing."36 Section 6 refers to transfers inter vivos and not transmissions
mortis causa. What Section 6 seeks to avoid is for the lessee to substitute a third party in place of the
lessee without the lessors consent. This merely reiterates what Article 1649 of the Civil Code
provides:

Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is a
stipulation to the contrary.

In any case, HDSJ also acknowledged that Ramon is its month-to-month lessee. Thus, the death of
German did not terminate the lease contract executed with HDSJ, but instead continued with Ramon
as the lessee. HDSJ recognized Ramon as its lessee in a letter dated 1 March 2001:

We acknowledge the fact that Hospicio de San Jose has been accepting the payment of your rentals
since the demise of Mr. [German] Inocencio. Hence, an implied contract of lease between the two of
you exists. However, since there is no stipulation as to the period of the contract and you are paying a
monthly rental to our client, the period for the lease is on a month-to-month basis (Art. 1687). Thus as
of this date, your contract should expire on March 31, 2001. 37

Section 6 of the lease contract requires written consent of the lessor before the lease may be
assigned or transferred. In Tamio v. Tecson,38 we explained the nature of an assignment of lease:

In the case of cession or assignment of lease rights on real property, there is a novation by the
substitution of the person of one of the parties the lessee. The personality of the lessee, who
dissociates from the lease, disappears; only two persons remain in the juridical relation the lessor
and the assignee who is converted into the new lessee.39

Assignment or transfer of lease, which is covered by Article 1649 of the Civil Code, is different from a
sublease arrangement, which is governed by Article 1650 of the same Code. In a sublease, the
lessee becomes in turn a lessor to a sublessee. The sublessee then becomes liable to pay rentals to
the original lessee. However, the juridical relation between the lessor and lessee is not dissolved. The
parties continue to be bound by the original lease contract. Thus, in a sublease arrangement, there
are at least three parties and two distinct juridical relations.40

Page 5 of 72
Ramon had a right to sublease the premises since the lease contract did not contain any stipulation
forbidding subleasing. Article 1650 of the Civil Code states:

Art. 1650. When in the contract of lease of things there is no express prohibition, the lessee may
sublet the thing leased, in whole or in part, without prejudice to his responsibility for the performance
of the contract toward the lessor.

Therefore, we hold that the sublease contracts executed by Ramon were valid.

We also find that HDSJ did not commit tortious interference. Article1314 of the Civil Code states:

Art. 1314. Any third person who induces another to violate his contract shall be liable for damages to
the other contracting party.

As correctly pointed out by the Inocencios, tortious interference has the following elements: (1)
existence of a valid contract; (2) knowledge on the part of the third person of the existence of the
contract; and (3) interference of the third person without legal justification or excuse.41

The facts of the instant case show that there were valid sublease contracts which were known to
HDSJ. However, we find that the third element is lacking in this case.

In So Ping Bun v. Court of Appeals,42 we held that there was no tortious interference if the intrusion
was impelled by purely economic motives. In So Ping Bun, we explained that:

Authorities debate on whether interference may be justified where the defendant acts for the sole
purpose of furthering his own financial or economic interest. One view is that, as a general rule,
justification for interfering with the business relations of another exists where the actors motive is to
benefit himself. Such justification does not exist where his sole motive is to cause harm to the other.
Added to this, some authorities believe that it is not necessary that the interferers interest outweighs
that of the party whose rights are invaded, and that an individual acts under an economic interest that
is substantial, not merely de minimis, such that wrongful and malicious motives are negatived, for he
acts in self- protection. Moreover, justification for protecting ones financial position should not be
made to depend on a comparison of his economic interest in the subject matter with that of others. It
is sufficient if the impetus of his conduct lies in a proper business interest rather than in wrongful
motives.43

The evidence shows that HDSJ entered into agreements with Ramons former sublessees for purely
economic reasons (payment of rentals). HDSJ had a right to collect the rentals from the sublessees
upon termination of the lease contract. It does not appear that HDSJ was motivated by spite or ill will
towards the Inocencios.

The Inocencios claim ownership over the buildings since these are separate and distinct from the
land on which they are erected. Thus, as owners of the buildings, they have a right to lease the
buildings to third persons, even after termination of the lease contract with HDSJ. To bolster their
claim of ownership, the Inocencios presented the following evidence: (1) the building permit; 44

Page 6 of 72
(2) the receipt for the payment of the permit fee;45 (3) the Tax Declarations; and (4) the proof of
payment of insurance.46 The Inocencios also claimed that:

as the Inocencios owned the Subject Buildings, it is respectfully submitted, and it should be clear that
when they entered into lease contracts with tenants for the lease of portions of the said buildings,
these contracts were independent contracts of lease over their own building and not sub-leases of the
parcel of land which they leased from Respondent. It is Respondents inaccurate characterization of
the leasing by the Inocencios of portions of their own building that has obfuscated the legal issues in
this case and partially led to the incorrect decisions of the courts a quo. 47

We do not agree. In Duellome v. Gotico48 and Caleon v. Agus Development Corporation,49

we held that the lease of a building includes the lease of the lot and consequently, the rentals of the
building include the rentals of the lot. As correctly pointed out by HDSJ in its Comment: 50

x x x When the Inocencios leased the buildings to third parties, they also "leased" to the third parties
the plot of land on which the buildings stood either by implied transfer of the lease covering the plot
of the land, or by sublease. Either way, x x x the Inocencios themselves must have a valid lease
contract with [HDSJ] over the land. However, when the lease contract x x x with HDSJ ended on
31March 2001, Ramon lost his status as lessee of the land, and therefore, had no authority to transfer
the lease or sublease the land. x x x.51

However, we find that the CA erred in not applying Article 1678 of the Civil Code which provides:

Art. 1678. If the lessee makes, in good faith, useful improvements which are suitable to the use for
which the lease is intended, without altering the form or substance of the property leased, the lessor
upon the termination of the lease shall pay the lessee one-half of the value of the improvements at
that time. Should the lessor refuse to reimburse said amount, the lessee may remove the
improvements, even though the principal thing may suffer damage thereby. He shall not, however,
cause any more impairment upon the property leased than is necessary.

With regard to ornamental expenses, the lessee shall not be entitled to any reimbursement, but he
may remove the ornamental objects, provided no damage is caused to the principal thing, and the
lessor does not choose to retain them by paying their value at the time the lease is extinguished.

The foregoing provision applies if the improvements were: (1) introduced in good faith; (2) useful; and
(3) suitable to the use for which the lease is intended, without altering the form and substance.52

We find that the aforementioned requisites are satisfied in this case.1wphi1 The buildings were
constructed before Germans demise, during the subsistence of a valid contract of lease. It does not
appear that HDSJ prohibited German from constructing the buildings. Thus, HDSJ should have
reimbursed German (or his estate) half of the value of the improvements as of 2001. If HDSJ is not
willing to reimburse the Inocencios, then the latter should be allowed to demolish the buildings.

We also find that the action for unlawful detainer was not barred by prescription. Section 1, Rule 70 of
the Rules of Court provides that actions for unlawful detainer must be filed "within one (1) year after

Page 7 of 72
such unlawful deprivation or withholding of possession." In interpreting the foregoing provision, this
Court, in Republic v. Sunvar Realty Development Corporation,53 held that:

The one-year period to file an unlawful detainer case is not counted from the expiration of the lease
contract on 31 December 2002. Indeed, the last demand for petitioners to vacate is the reckoning
period for determining the one-year period in an action for unlawful detainer. "Such one year period
should be counted from the date of plaintiffs last demand on defendant to vacate the real property,
because only upon the lapse of that period does the possession become unlawful."54

HDSJs last demand was made on 3 March 2005, and it filed the complaint for unlawful detainer on
28 June 2005. Thus, the complaint was filed within the period provided under the Rules of Court.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated 12 January 2012 of the Court
of Appeals in CA-G.R. SP No. 117009 is AFFIRMED with modification. The case is hereby
REMANDED to the Metropolitan Trial Court of Pasay, Branch 48, for determination of the value or the
improvements to be paid to the lnocencios, if Hospicio de San Jose desires to keep the
improvements. Otherwise, the Inocencios shall be allowed to demolish the buildings at their expense.

SO ORDERED.

Page 8 of 72
 FIRST DIVISION

[G.R. No. 118248. April 5, 2000]

DKC HOLDINGS CORPORATION, petitioner, vs. COURT OF APPEALS, VICTOR U.

BARTOLOME and REGISTER OF DEEDS FOR METRO MANILA, DISTRICT
III, respondents. francis

DECISION

YNARES_SANTIAGO, J.:

This is a petition for review on certiorari seeking the reversal of the December 5, 1994 Decision of the
Court of Appeals in CA-G.R. CV No. 40849 entitled "DKC Holdings Corporation vs. Victor U.
Bartolome, et al.",[1] affirming in toto the January 4, 1993 Decision of the Regional Trial Court of
Valenzuela, Branch 172,[2] which dismissed Civil Case No. 3337-V-90 and ordered petitioner to pay
P30,000.00 as attorneys fees.

The subject of the controversy is a 14,021 square meter parcel of land located in Malinta, Valenzuela,
Metro Manila which was originally owned by private respondent Victor U. Bartolomes deceased
mother, Encarnacion Bartolome, under Transfer Certificate of Title No. B-37615 of the Register of
Deeds of Metro Manila, District III. This lot was in front of one of the textile plants of petitioner and, as
such, was seen by the latter as a potential warehouse site.

On March 16, 1988, petitioner entered into a Contract of Lease with Option to Buy with Encarnacion
Bartolome, whereby petitioner was given the option to lease or lease with purchase the subject land,
which option must be exercised within a period of two years counted from the signing of the Contract.
In turn, petitioner undertook to pay P3,000.00 a month as consideration for the reservation of its
option. Within the two-year period, petitioner shall serve formal written notice upon the lessor
Encarnacion Bartolome of its desire to exercise its option. The contract also provided that in case
petitioner chose to lease the property, it may take actual possession of the premises. In such an
event, the lease shall be for a period of six years, renewable for another six years, and the monthly
rental fee shall be P15,000.00 for the first six years and P18,000.00 for the next six years, in case of
renewal.

Petitioner regularly paid the monthly P3,000.00 provided for by the Contract to Encarnacion until her
death in January 1990. Thereafter, petitioner coursed its payment to private respondent Victor
Bartolome, being the sole heir of Encarnacion. Victor, however, refused to accept these
payments. iska

Meanwhile, on January 10, 1990, Victor executed an Affidavit of Self-Adjudication over all the
properties of Encarnacion, including the subject lot. Accordingly, respondent Register of Deeds
cancelled Transfer Certificate of Title No. B-37615 and issued Transfer Certificate of Title No. V-
14249 in the name of Victor Bartolome.

On March 14, 1990, petitioner served upon Victor, via registered mail, notice that it was exercising its
option to lease the property, tendering the amount of P15,000.00 as rent for the month of March.
Page 9 of 72
Again, Victor refused to accept the tendered rental fee and to surrender possession of the property to
petitioner.

Petitioner thus opened Savings Account No. 1-04-02558-I-1 with the China Banking Corporation,
Cubao Branch, in the name of Victor Bartolome and deposited therein the P15,000.00 rental fee for
March as well as P6,000.00 reservation fees for the months of February and March.

Petitioner also tried to register and annotate the Contract on the title of Victor to the property.
Although respondent Register of Deeds accepted the required fees, he nevertheless refused to
register or annotate the same or even enter it in the day book or primary register.

Thus, on April 23, 1990, petitioner filed a complaint for specific performance and damages against
Victor and the Register of Deeds,[3] docketed as Civil Case No. 3337-V-90 which was raffled off to
Branch 171 of the Regional Trial Court of Valenzuela. Petitioner prayed for the surrender and delivery
of possession of the subject land in accordance with the Contract terms; the surrender of title for
registration and annotation thereon of the Contract; and the payment of P500,000.00 as actual
damages, P500,000.00 as moral damages, P500,000.00 as exemplary damages and P300,000.00 as
attorneys fees.

Meanwhile, on May 8, 1990, a Motion for Intervention with Motion to Dismiss [4] was filed by one
Andres Lanozo, who claimed that he was and has been a tenant-tiller of the subject property, which
was agricultural riceland, for forty-five years. He questioned the jurisdiction of the lower court over the
property and invoked the Comprehensive Agrarian Reform Law to protect his rights that would be
affected by the dispute between the original parties to the case. ella

On May 18, 1990, the lower court issued an Order[5] referring the case to the Department of Agrarian
Reform for preliminary determination and certification as to whether it was proper for trial by said
court.

On July 4, 1990, the lower court issued another Order[6] referring the case to Branch 172 of the RTC
of Valenzuela which was designated to hear cases involving agrarian land, after the Department of
Agrarian Reform issued a letter-certification stating that referral to it for preliminary determination is
no longer required.

On July 16, 1990, the lower court issued an Order denying the Motion to Intervene, [7] holding that
Lanozos rights may well be ventilated in another proceeding in due time.

After trial on the merits, the RTC of Valenzuela, branch 172 rendered its Decision on January 4,
1993, dismissing the Complaint and ordering petitioner to pay Victor P30,000.00 as attorneys fees.
On appeal to the CA, the Decision was affirmed in toto.

Hence, the instant Petition assigning the following errors:

(A)

FIRST ASSIGNMENT OF ERROR

Page 10 of 72
 THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE
PROVISION ON THE NOTICE TO EXERCISE OPTION WAS NOT TRANSMISSIBLE.

(B)

SECOND ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE NOTICE OF

OPTION MUST BE SERVED BY DKC UPON ENCARNACION BARTOLOME
PERSONALLY.

(C) nigel

THIRD ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE

CONTRACT WAS ONE-SIDED AND ONEROUS IN FAVOR OF DKC.

(D)

FOURTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE

EXISTENCE OF A REGISTERED TENANCY WAS FATAL TO THE VALIDITY OF THE
CONTRACT.

(E)

FIFTH ASSIGNMENT OF ERROR

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PLAINTIFF-

APPELLANT WAS LIABLE TO DEFENDANT-APPELLEE FOR ATTORNEYS FEES.[8]

The issue to be resolved in this case is whether or not the Contract of Lease with Option to Buy
entered into by the late Encarnacion Bartolome with petitioner was terminated upon her death or
whether it binds her sole heir, Victor, even after her demise.

Both the lower court and the Court of Appeals held that the said contract was terminated upon the
death of Encarnacion Bartolome and did not bind Victor because he was not a party thereto.

Article 1311 of the Civil Code provides, as follows-

"ART. 1311. Contracts take effect only between the parties, their assigns and heirs,
except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law. The heir is not
liable beyond the value of the property he received from the decedent. brnado

Page 11 of 72
 x x x x x x x x x."

The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-
interest except when the rights and obligations arising therefrom are not transmissible by (1) their
nature, (2) stipulation or (3) provision of law.

In the case at bar, there is neither contractual stipulation nor legal provision making the rights and
obligations under the contract intransmissible. More importantly, the nature of the rights and
obligations therein are, by their nature, transmissible.

The nature of intransmissible rights as explained by Arturo Tolentino, an eminent civilist, is as follows:

"Among contracts which are intransmissible are those which are purely personal, either
by provision of law, such as in cases of partnerships and agency, or by the very nature
of the obligations arising therefrom, such as those requiring special personal
qualifications of the obligor. It may also be stated that contracts for the payment of
money debts are not transmitted to the heirs of a party, but constitute a charge against
his estate. Thus, where the client in a contract for professional services of a lawyer died,
leaving minor heirs, and the lawyer, instead of presenting his claim for professional
services under the contract to the probate court, substituted the minors as parties for his
client, it was held that the contract could not be enforced against the minors; the lawyer
was limited to a recovery on the basis of quantum meruit."[9]

In American jurisprudence, "(W)here acts stipulated in a contract require the exercise of special
knowledge, genius, skill, taste, ability, experience, judgment, discretion, integrity, or other personal
qualification of one or both parties, the agreement is of a personal nature, and terminates on the
death of the party who is required to render such service."[10] marinella

It has also been held that a good measure for determining whether a contract terminates upon the
death of one of the parties is whether it is of such a character that it may be performed by the
promissors personal representative. Contracts to perform personal acts which cannot be as well
performed by others are discharged by the death of the promissor. Conversely, where the service or
act is of such a character that it may as well be performed by another, or where the contract, by its
terms, shows that performance by others was contemplated, death does not terminate the contract or
excuse nonperformance.[11]

In the case at bar, there is no personal act required from the late Encarnacion Bartolome. Rather, the
obligation of Encarnacion in the contract to deliver possession of the subject property to petitioner
upon the exercise by the latter of its option to lease the same may very well be performed by her heir
Victor.

As early as 1903, it was held that "(H)e who contracts does so for himself and his heirs."[12] In 1952, it
was ruled that if the predecessor was duty-bound to reconvey land to another, and at his death the
reconveyance had not been made, the heirs can be compelled to execute the proper deed for
reconveyance. This was grounded upon the principle that heirs cannot escape the legal consequence
of a transaction entered into by their predecessor-in-interest because they have inherited the property
subject to the liability affecting their common ancestor.[13]
Page 12 of 72
It is futile for Victor to insist that he is not a party to the contract because of the clear provision of
Article 1311 of the Civil Code. Indeed, being an heir of Encarnacion, there is privity of interest
between him and his deceased mother. He only succeeds to what rights his mother had and what is
valid and binding against her is also valid and binding as against him.[14] This is clear from Paraaque
Kings Enterprises vs. Court of Appeals,[15] where this Court rejected a similar defense-alonzo

With respect to the contention of respondent Raymundo that he is not privy to the lease
contract, not being the lessor nor the lessee referred to therein, he could thus not have
violated its provisions, but he is nevertheless a proper party. Clearly, he stepped into
the shoes of the owner-lessor of the land as, by virtue of his purchase, he assumed all
the obligations of the lessor under the lease contract. Moreover, he received benefits in
the form of rental payments. Furthermore, the complaint, as well as the petition, prayed
for the annulment of the sale of the properties to him. Both pleadings also alleged
collusion between him and respondent Santos which defeated the exercise by petitioner
of its right of first refusal.

In order then to accord complete relief to petitioner, respondent Raymundo was a

necessary, if not indispensable, party to the case. A favorable judgment for the
petitioner will necessarily affect the rights of respondent Raymundo as the buyer of the
property over which petitioner would like to assert its right of first option to buy.

In the case at bar, the subject matter of the contract is likewise a lease, which is a property right. The
death of a party does not excuse nonperformance of a contract which involves a property right, and
the rights and obligations thereunder pass to the personal representatives of the deceased. Similarly,
nonperformance is not excused by the death of the party when the other party has a property interest
in the subject matter of the contract.[16]

Under both Article 1311 of the Civil Code and jurisprudence, therefore, Victor is bound by the subject
Contract of Lease with Option to Buy.

That being resolved, we now rule on the issue of whether petitioner had complied with its obligations
under the contract and with the requisites to exercise its option. The payment by petitioner of the
reservation fees during the two-year period within which it had the option to lease or purchase the
property is not disputed. In fact, the payment of such reservation fees, except those for February and
March, 1990 were admitted by Victor.[17] This is clear from the transcripts, to wit-

"ATTY. MOJADO:

One request, Your Honor. The last payment which was allegedly made in January 1990
just indicate in that stipulation that it was issued November of 1989 and postdated
Janaury 1990 and then we will admit all. rodp;fo

COURT:

All reservation fee?

ATTY. MOJADO:
Page 13 of 72
 Yes, Your Honor.

COURT:

All as part of the lease?

ATTY. MOJADO:

Reservation fee, Your Honor. There was no payment with respect to payment of
rentals."[18]

Petitioner also paid the P15,000.00 monthly rental fee on the subject property by depositing the same
in China Bank Savings Account No. 1-04-02558-I-1, in the name of Victor as the sole heir of
Encarnacion Bartolome,[19] for the months of March to July 30, 1990, or a total of five (5) months,
despite the refusal of Victor to turn over the subject property.[20]

Likewise, petitioner complied with its duty to inform the other party of its intention to exercise its
option to lease through its letter dated Match 12, 1990, [21] well within the two-year period for it to
exercise its option. Considering that at that time Encarnacion Bartolome had already passed away, it
was legitimate for petitioner to have addressed its letter to her heir.

It appears, therefore, that the exercise by petitioner of its option to lease the subject property was
made in accordance with the contractual provisions. Concomitantly, private respondent Victor
Bartolome has the obligation to surrender possession of and lease the premises to petitioner for a
period of six (6) years, pursuant to the Contract of Lease with Option to Buy. micks

Coming now to the issue of tenancy, we find that this is not for this Court to pass upon in the present
petition. We note that the Motion to Intervene and to Dismiss of the alleged tenant, Andres Lanozo,
was denied by the lower court and that such denial was never made the subject of an appeal. As the
lower court stated in its Order, the alleged right of the tenant may well be ventilated in another
proceeding in due time.

WHEREFORE, in view of the foregoing, the instant Petition for Review is GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV No. 40849 and that of the Regional Trial Court of Valenzuela in
Civil Case No. 3337-V-90 are both SET ASIDE and a new one rendered ordering private respondent
Victor Bartolome to:

(a) surrender and deliver possession of that parcel of land covered by Transfer
Certificate of Title No. V-14249 by way of lease to petitioner and to perform all
obligations of his predecessor-in-interest, Encarnacion Bartolome, under the subject
Contract of Lease with Option to Buy;

(b) surrender and deliver his copy of Transfer Certificate of Title No. V-14249 to
respondent Register of Deeds for registration and annotation thereon of the subject
Contract of Lease with Option to Buy;

(c) pay costs of suit. Sc

Page 14 of 72
Respondent Register of Deeds is, accordingly, ordered to register and annotate the subject Contract
of Lease with Option to Buy at the back of Transfer Certificate of Title No. V-14249 upon submission
by petitioner of a copy thereof to his office.

SO ORDERED.

Page 15 of 72
 SECOND DIVISION

DY YIENG SEANGIO, G.R. Nos. 140371-72

BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners, Present:

PUNO, J., Chairperson,

- versus - SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
HON. AMOR A. REYES, in her GARCIA, JJ.
capacity as Presiding Judge,
Regional Trial Court, National
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. Promulgated:
SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM, November 27, 2006
BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO,
Respondents.
x ---------------------------------------------------------------------------------------- x

DECISION

AZCUNA, J.:
This is a petition for certiorari[1] with application for the issuance of a writ of preliminary injunction and/or
temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999,
of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground
of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al. and In the
Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia
Seangio.
The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late
Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the RTC, and praying for the appointment of private
respondent Elisa D. SeangioSantos as special administrator and guardian ad litem of petitioner Dy Yieng
Seangio.

Page 16 of 72
 Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo
executed a general power of attorney in favor of Virginia giving her the power to manage and exercise control
and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant; and, 4) Segundo left a
holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to
have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for
the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No.
9993396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should
take precedence over SP. Proc. No. 9890870 because testate proceedings take precedence and enjoy priority
over intestate proceedings.[2]

The document that petitioners refer to as Segundos holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng
lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si
Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel
Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at
hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong
saksi. [3]
(signed)
Segundo Seangio
Page 17 of 72
Nilagdaan sa harap namin

(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi

(signed)
ikatlong saksi

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No. 9993396 were
consolidated.[4]
On July 1, 1999, private respondents moved for the dismissal of the probate proceedings[5] primarily on
the ground that the document purporting to be the holographic will of Segundo does not contain any disposition
of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code.
According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his
eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir,
devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of
the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the
petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the
property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of
the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the
estate of a decedent; and, 4) the rule on preterition does not apply because Segundos will does not constitute a
universal heir or heirs to the exclusion of one or more compulsory heirs.[6]
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings:
A perusal of the document termed as will by oppositors/petitioners Dy Yieng Seangio, et al.,
clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an
abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: for respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face, the will appears to be
intrinsically void would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity
of the will was resolved (underscoring supplied).
Page 18 of 72
 WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for
lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED without pronouncement
as to costs.
SO ORDERED.[7]

Petitioners motion for reconsideration was denied by the RTC in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST
1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B HEREOF) CONSIDERING
THAT:

I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4
OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING
THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE
TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;

II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS
THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT
NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,

III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which
respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear
Page 19 of 72
to contest the allowance thereof, and cause notice of such time and place to be published three weeks
successively previous to the appointed time in a newspaper of general circulation; and, b) cause the mailing of
said notice to the heirs, legatees and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly
states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is
no preterition in the decedents will and the holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole
exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and
extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render
nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by
him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as
regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundos intention of
excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo
was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a
will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that
were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be
considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient
cause for the disinheritance of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;

Page 20 of 72
 (2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;[8]
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a
holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines,
and need not be witnessed.

Segundos document, although it may initially come across as a mere disinheritance instrument, conforms to the
formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa[9] can be clearly deduced from the terms of the instrument, and while
it does not make an affirmative disposition of the latters property, the disinheritance of Alfredo, nonetheless, is
an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the
testator Segundo in favor of those who would succeed in the absence of Alfredo.[10]

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and
within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of
construction are designed to ascertain and give effect to that intention. It is only when the intention of the
testator is contrary to law, morals, or public policy that it cannot be given effect.[11]
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the
present case, should be construed more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention of the testator.[12] In this regard, the
Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a
holographic will. Unless the will is probated,[13] the disinheritance cannot be given effect.[14]

Page 21 of 72
 With regard to the issue on preterition,[15] the Court believes that the compulsory heirs in the direct line
were not preterited in the will. It was, in the Courts opinion, Segundos last expression to bequeath his estate to
all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir[16] to the
exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the
document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the
altercation between Segundo and his son, Alfredo.
Considering that the questioned document is Segundos holographic will, and that the law favors testacy over
intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will
shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory.[17]
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is
settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.[18]
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21,
dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear
SP Proc. No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP.
Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings.
No costs.
SO ORDERED.

Page 22 of 72
G.R. No. 42258 September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,

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
Page 23 of 72
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 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
Page 24 of 72
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
Page 25 of 72
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 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.

Page 26 of 72
 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.

Page 27 of 72
G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another,
No. 6284,1just decided by this court, wherein there was an application for the probate of an alleged
last will and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon
died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and
testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A.
M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will
Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or write, the same had been read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred
to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the
probate of this later will were pending at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon
the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to
the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will
than that of the person whose handwriting it was alleged to be. We do not believe that the mere
dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted
testimony of all the witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix provided it is written at her request and in her
presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must afterwards
sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of
Page 28 of 72
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
Page 29 of 72
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.

Separate Opinions

TORRES, J., concurring:

Page 30 of 72
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not
expressly require that, when the testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of either of them, writes in the name of
the said testator or testatrix must also sign his own name thereto, it being sufficient for the validity of
the will that the said person so requested to sign the testator or testatrix write the name of either in his
own handwriting.

Since this court began to decide cases with regard to the form, conditions and validity of wills
executed in accordance with the provisions of the Code of Civil Procedure, never has the specific
point just above mentioned been brought into question. Now for the first time is affirmed in the
majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the request of the testator
or testatrix, writes the name of either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in which, as will
be seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its
observance in cases where the testator or testatrix is unable or does not know how to sign his or her
name, expressly prescribed the practical method of complying with the provisions of the law on the
subject. Among these decisions several were written by various justices of this court, some of whom
are no longer on this bench, as they have ceased to hold such position.

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a
will, reads as follows:

Wills, authentication of . Where a will is not signed by a testator but by some other person in
his presence and by his direction, such other person should affix the name of the testator
thereto, and it is not sufficient that he sign his own name for and instead of the name of the
testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a
will, states:

1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil Procedure;
consequently where a testator is unable to sign his name, the person signing at his request
must write at the bottom of the will the full name of the testator in the latter's presence, and by
his express direction, and then sign his own name in full.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements
appear:

Wills; inability to sign; signature by another. The testatrix was not able to sign her name to
the will, and she requested another person to sign it for her. Held, That the will was not duly
executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et
al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)

The following syllabus precedes decision No. 3907:4

Page 31 of 72
 Execution of wills. Where it appears in a will that the testator has stated that by reason of
his inability to sign his name he requested one of the three witnesses present to do so, and
that as a matter of fact, the said witness wrote the name and surname of the testator who,
stating that the instrument executed by him contained his last will, put the sign of the cross
between his said name and surname, all of which details are set forth in a note which the
witnesses forthwith subscribed in the presence of the testator and of each other, said will may
be probated.

When the essential requisites of section 618 of the Code of Civil Procedure for the execution
and validity of a will have been complied with, the fact that the witness who was requested to
sign the name of the testator, omitted to state the words 'by request of .......... the testator,'
when writing with his own hand the name and surname of the said testator, and the fact that
said witness subscribed his name together with the other witnesses and not below the name of
the testator, does not constitute a defect nor invalidate the said will.

The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria
Siason:5

The recital of the name of the testator as written below the will at his request serves as a
signature by a third person.

Moreover among the grounds given as a basis for this same decision, the following appears:

In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero.
In the Arcenas case the court pointed out the correct formula for a signature which ought to be
followed, but did not mean to exclude any other for substantially equivalent.

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:

The testatrix was unable to sign her will with her own hand and requested another person to
sign for her in her presence. This the latter did, first writing the name of the testatrix and
signing his own name below: Held, That the signature of the testatrix so affixed is sufficient
and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered as inserted subsequently,
which we neither affirm nor deny, because a specific determination either way is unnecessary,
in our opinion the signature for the testatrix placed outside of the body of the will contains the
name of the testatrix as if she signed the will, and also the signature of the witness who, at her
Page 32 of 72
 request, wrote the name of the testatrix and signed for her, affirming the truth of this fact,
attested by the other witnesses then present. And this fully complies with the provisions of
section 618 of the Act.

It is true that in none of the decisions above quoted was the rule established that the person who, at
the request of the testator or testatrix, signed the latter's or the former's name and surname to the will
must affix his own signature; but it no less true that, in prescribing the method in which the provisions
of the said section 618 to be complied with, it was stated that, in order that a will so executed might
be admitted to probate, it was an indispensable requisite that the person requested to sign in place of
the testator or testatrix, should write the latter's or the former's name and surname at the foot of the
will in the presence and under the direction of either, as the case might be, and should afterwards
sign the instrument with his own name and surname.

The statement that the person who writes the name and surname of the testator or testatrix at the foot
of the will should likewise affix his own signature thereto, name and surname, though it be considered
to be neither a rule nor a requisite necessary to follow for the admission of the will to probate, yet it is
unquestionable that, in inserting this last above-mentioned detail in the aforesaid decisions, it was
deemed to be a complement and integral part of the required conditions for the fulfillment of the
provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating
in the decisions hereinabove quoted that the name and surname of the said person should be affixed
by him, no act prohibited by law was recommended or suggested, nor may such a detail be
understood to be contrary or opposed to the plain provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even prudent to require that the
person requested to write the name of the testator or testatrix in the will also sign the instrument with
his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of
this country and for sake of an upright administration of justice, it should be maintained that such a
signature must appear in the will, since no harm could accrue to anyone thereby and, on the contrary,
it would serve as a guarantee of the certainty of the act performed and also might eliminate some
possible cause of controversy between the interested parties.

The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695
of the Civil Code and, while he conceded that, in the examination and qualification of a will for the
purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of Civil
Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled by a
traditional conception of the laws which he has known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common sense requisite that the signature, with
his own name and surname, of the person requested to write in the will the name and surname of the
testator or testatrix should form a part of the provisions of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person
before referred to a requisite deemed to be convenient and prudent in the majority opinion
formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they appear, and signed
Page 33 of 72
without dissent by all the justices of the court on various dates. None of them hesitated to sign the
decisions, notwithstanding that it was expressly held therein that the person above mentioned should,
besides writing in the will the name and surname of the testator or testatrix, also sign the said
instrument with his own name and surname.

Without being understood to criticize the provision contained in the said section 618 of the Code of
Civil Procedure it will not be superfluous to mention that the system adopted in this section is the
same as was in vogue under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony given in criminal or civil
cases, in which event any person at all might write the name and surname of the witness who was
unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and,
this done, it was considered that the instrument had been signed by the witness, though it is true that
all these formalities were performed before the judge and the clerk or secretary of the court, which
thereupon certified that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person
who writes the name and surname of the testator or testatrix does so by the order and express
direction of the one or of the other, and this fact must be recorded in the will; but in the matter of the
signature of a deposition, the witness, who could not or did not know how to sign, did not need to
designate anyone to write the deponent's name and surname, and in practice the witness merely
made a cross beside his name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among
them those of the Civil Code, the person or witness requested by the testator or testatrix who was not
able or did not know how to sign, authenticated the will by signing it with his own name and surname,
preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article 695 of the
Civil Code contains the following provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able to sign, one of the
attesting witnesses or another person shall do so for him at his request, the notary certifying
thereto. This shall be done if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by
the old laws with respect to the signing of a will by a testator or testatrix who did not know how or who
could not sign, consisted in that the person appointed and requested by the testator or testatrix to
sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will
and after the words "at the request of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and inspired by these legal
provisions, which it may said, are traditional to them in the ideas they have formed of the existing
laws in the matter of procedure in compliance therewith as regards the execution and signing of a will,
should have believed that, after the name and surname of the testator or testatrix had been written at
the foot of the will, the person who signed the instrument in the manner mentioned should likewise
sign the same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the
testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will with
Page 34 of 72
his own name and surname, and since this suggestion is not opposed or contrary to the law, the
undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it
should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such
a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition
of this country, does not prejudice the testator nor those interested in an inheritance, and, on the
contrary, constitutes another guarantee of the truth and authenticity of the letters with which the name
and surname of the testator of testatrix are written, in accordance with his or her desire as expressed
in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported by
any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs
observed in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit
of the inhabitants of the Islands and for the sake of a good administration of justice, because it is not
a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the
observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts
and which in the present case has filed a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises, but in the
opinion of the undersigned, are conducive to the realization of the purposes of justice, have impelled
him to believe that the proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also subscribed the instrument by
signing thereto his own name and surname; and therefore, with the proper finding in this sense, and
reversal of the judgment appealed from, that the court below should be ordered to proceed with the
probate of the will of the decedent, Maria Salomon, in accordance with the law.

Page 35 of 72
G.R. No. L-18979 June 30, 1964

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

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission
to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as
his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed
their joint opposition to the admission of the amended and supplemental petition, but by order of July
20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her
amended opposition. Thereafter, the parties presented their respective evidence, and after several
hearings the court issued the order admitting the will and its duplicate to probate. From this order, the
oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will
Page 36 of 72
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may
have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was
signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was deceived
into adopting as her last will and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and circumstances surrounding the execution
of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit
from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned
Page 37 of 72
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.

Page 38 of 72
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.

Page 39 of 72
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.

Page 40 of 72
G.R. No. 16008 September 29, 1921

IN RE WILL OF THE DECEASED LUCINA ANDRADA, LUCILA ARCE, petitioner-appellant.

J. Dorado, J. Tirol, and J. Hontiveros for appellant.

STREET, J.:

Lucina Andrada died on June 5, 19919, in the Municipality of Capiz, Province of Capiz; and soon
thereafter a petition was presented to the Cour of First Instance of Capiz by Lucila Arce to establish a
document purporting to be the last will and testament of the deceased. Upon hearing the petition, his
Honor, Judge Antonio Villareal, declared that the document in question had not been executed in
conformity with the requirements of section 618 of the Coe of Civil Procedure, as amended by Act No.
2645 of the Philippine Legislature. He therefore refused to admit the purported will to probate, and the
petitioner appealed.

The attesting clause of the will in question is incorporated in the will itself, constituting the last
paragraph thereof; and its defect consists in the fact that it does not state the number of sheets or
pages upon which the will is written, though it does state that the testatrix and the instrumental
witnesses signed on every page, as is in fact obvious from an inspection of the instrument. Each of
the pages moreover bears successively the Visayan words, "isa," "duha," "tatlo," "apat," "lima," which
mean respectively "one," "two," "three," "four," "five," Visayan being the dialect in which the
instrument is written.

By section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is required that each
and every page of the will shall be numbered correlatively in letters and that the attesting clause shall
state the number of sheets or pages used.

Without decising in this case whether the will in question is rendered invalid by reason of the manner
in which the pages are numbered, the court is unanimous upon the point that the defect pointed out in
the attesting clause is fatal. The law plainly says that the attestation shall state the number of sheets
or pages used, the eident purpose being to safeguard the document from the possiblity of the
interpolation of additional pages or the omission of some of the pages actually used. It is true that this
point is also safeguarded by the other two requirements that the pages shall be consecutively lettered
and that each page shall be singed on the left margin by the testator and the witnesses. In light of
these requirements it is really difficult to see any practical necessity for the additional requirement that
the attesting clause shall state the number of sheets or pages used. Nevertheless, it cannot be
denied that the last mentioned requirement affords additional secuirty against the danger that the will
may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be
considered material.

In two cases we have held that the failure to comply with the strict requirements of this law does not
invalidate the instrument, but the irregularities presented in those cases were entirely rivial, the defect
in one case being that a willin which the dispositive part consisted of a single sheet was not signed in
the margin in addition to being signed at the bottom (In re will of Abangan, 40 Phil., 476); in the
others, that the pages comprising the body of the will were signed by the testator and witnesses on
the right margin instead of the left (Avera vs. Garcia and Rodriguez, p. 145, ante). In the case now
Page 41 of 72
before us the defect is, in our opinion, of more significance; and the rule here applicable is that
enunciated in Caraig vs. Tatlonghari, R.G. No. 12558, decided March 23, 1918, not reported, and (In
re estate of Saguinsim, 41 Phil., 875), in each of which the will was held to be invalid.

It results that the trial judge did not err in refusing probate of the will, and the judgment must be
affirmed. It is so ordered, with costs against the appellant.

Johnson, Araullo, Avancea and Villamor, JJ., concur.

Page 42 of 72
G.R. No. L-5826 April 29, 1953

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

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan,
Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures of
the three witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of the law
and, therefore, should be admitted to probate . It appears that the will was signed by the testator and
was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin.
Page 43 of 72
The witnesses testified not only that the will was signed by the testator in their presence and in the
presence of each other but also that when they did so, the attestation clause was already written
thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the
validity of the will is the fact that the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476),
this court said that when the testamentary 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 such a case, the court said, the requirement of the
signatures on the left hand margin was not necessary because the purpose of the law which is to
avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions
has already been accomplished. We may say the same thing in connection with the will under
consideration because while the three instrumental witnesses did not sign immediately by the majority
that it may have been only added on a subsequent occasion and not at the uncontradicted testimony
of said witnesses to the effect that such attestation clause was already written in the will when the
same was signed.

The following observation made by this court in the Abangan case is very fitting:

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 i
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 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. (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of
wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect
of preventing intestacy (article 788 and 791, New Civil Code)

I am therefore of the opinion that the will in question should be admitted to probate.

Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only question is whether such signatures are
legally sufficient.
Page 44 of 72
The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting
witness should sign the clause at the bottom. In the absence of such provision, there is no reason
why signatures on the margin are not good. A letter is not any the less the writter's simply because it
was signed, not at the conventional place but on the side or on top.

Feria, J., concurs.

Page 45 of 72
G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

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

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in
the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the
deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,
respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The
contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed
from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal
was made directly to this Court because the value of the properties involved exceeded two hundred
thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity
and that the dispositions were procured through undue influence. These grounds were abandoned at
the hearing in the court below, where the issue was concentrated into three specific questions: (1)
whether the testament of 1950 was executed by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective. These questions are the same ones presented to us for
resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria
Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma.
Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the
will) inform the deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not
feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and
not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned
it with the statement that no one would question it because the property involved was exclusively
hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's
rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria
Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in
the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March
30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have
insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in
order to execute her will, when all three witnesses could have easily repaired thither for the purpose.
Page 46 of 72
Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses.
Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed
ability to recall that word four years later, despite the fact that the term meant nothing to either. It is
well known that what is to be remembered must first be rationally conceived and assimilated (II Moore
on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the
deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor
give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to
have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house,
that was later proved to have been separated from the deceased's quarters, and standing at a much
lower level, so that conversations in the main building could not be distinctly heard from the kitchen.
Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in
a room where the servants used to eat when he heard Yap converse with his mistress; but this
correction is unavailing, since it was plainly induced by two highly leading questions from contestant's
counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us
by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing
of the testament or of the codicil, and the identity of the person who inserted the date therein, are not
material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember
all the details of the transaction. Neither are we impressed by the argument that the use of some
Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is proof that
its contents were not understood by the testatrix, it appearing in evidence that those terms are of
common use even in the vernacular, and that the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament,
this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be
acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be
the same ones who attested the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary
public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but
brought the codicil to his office, and signed and sealed it there. The variance does not necessarily
imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-
established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual
and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed.
868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the
testator, witnesses and notary should be accomplished in one single act. A comparison of Articles
805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of
each other, all that is thereafter required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the voluntariness of their actions in executing the
testamentary disposition. This was done in the case before us. The subsequent signing and sealing
Page 47 of 72
by the notary of his certification that the testament was duly acknowledged by the participants therein
is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution
out of the presence of the testatrix and her witnesses can not be said to violate the rule that
testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the
Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was
committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not
contain words requiring that the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ., concur.

Page 48 of 72
G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate
of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument
was execute without the testator having been fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether
the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the
testator and of each other, considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.
Page 49 of 72
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239,
247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or
ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk &
Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would
have to avow assent, or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public
were one of the attesting instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017;
17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary
in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re
Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In
Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15
So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not
decisive of the issue herein because the notaries public and witnesses referred to aforecited cases
merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also acknowledging witness, a situation
not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will or file
another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the
last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Page 50 of 72
G.R. No. 6845 September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.

Chicote and Miranda for appellants.

O'Brien and DeWitt for appellee.

JOHNSON, J.:

It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing
the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking
that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of
Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in
the city of Manila on the 11th day of August, 1909. Accompanying said petition and attached thereto
was the alleged will of the deceased. It appears that the will was signed by the deceased, as well as
Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the 18th day of September,
1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa
Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she had
executed a last will and testament; that he was present at the time of the execution of the same; that
he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said
will as witnesses and that they had signed the will in the presence of the deceased.

Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa
Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the city of
Manila; that before her death she had executed a last will and testament; that he was present at the
time said last will was executed; that there were also present Timoteo Paez and Severo Tabora and a
person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of
the witnesses; that he had seen her sign the will with his own eyes; that the witnesses had signed the
will in the presence of the said Tomasa Elizaga Yap Caong and in the presence of each other; that
the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment, she was in the
possession of her faculties; that there were no threats or intimidation used to induce her to sign the
will; that she signed it voluntarily.

No further witnesses were called and there was no further opposition presented to the legalization of
the said will.

After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of
September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed
and admitted to probate. The will was attached to the record and marked Exhibit A. The court further
ordered that one Yap Tua be appointed as executor of the will, upon the giving of a bond, the amount
of which was to be fixed later.

Page 51 of 72
From the record it appears that no further proceedings were had until the 28th of February, 1910,
when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were
interested in the matters of the said will and desired to intervene and asked that a guardian ad
litem be appointed to represent them in the cause.

On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties.
Gabriel La O accepted said appointment, took the oath of office and entered upon the performance of
his duties as guardian ad litem of said parties. On the 2d day of March, 1910, the said Gabriel La O
appeared in court and presented a motion in which he alleged, in substance:

First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court
on the 29th day of September, 1909, was null, for the following reasons:

(a) Because the same had not been authorized nor signed by the witnesses as the law
prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was
not then mentally capacitated to execute the same, due to her sickness.

(c) Because her signature to the will had been obtained through fraud and illegal influence
upon the part of persons who were to receive a benefit from the same, and because the said
Tomasa Elizaga Yap Caong had no intention of executing the same.

Second. That before the execution of the said will, which they alleged to be null, the said Tomasa
Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th
day of August, 1909.

Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been
negligent in presenting their opposition to the legalization of the will, said negligence was excusable,
on account of their age.

Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of
September, 1909, and to grant to said minors an opportunity to present new proof relating to the due
execution of said will. Said petition was based upon the provisions of section 113 of the Code of
Procedure in Civil Actions.

While it is not clear from the record, apparently the said minors in their petition for a new trial,
attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong,
and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano.

Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A.
S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon the
18th day of March, 1910, and directed that notice should be given to the petitioners of said rehearing
and to all other persons interested in the will. At the rehearing a number of witnesses were examined.

It will be remembered that one of the grounds upon which the new trial was requested was that the
deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August,
Page 52 of 72
1909; that in support of that allegation, the protestants, during the rehearing, presented a witness
called Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon
being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit A,
in his judgment were written by two different hands, though the given name is the same as that upon
Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on Exhibit A a
similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with the
surname on Exhibit 1 he found that the character of the writing was thoroughly distinguished and
different by the tracing and by the direction of the letters in the said two exhibits; that from his
experience and observation he believed that the name "Tomasa" and "Yap Caong," appearing in the
signature on Exhibit A were written by different person.

Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that
while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell
exactly when that was, except that he had concluded his course in the year 1882; that since that time
he had been a telegraph operator for seventeen years and that he had acted as an expert in hand-
writing in the courts in the provinces.

Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of
the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in
accordance with her request and under her directions; that she had signed it; that the same had been
signed by three witnesses in her presence and in the presence of each other; that the will was written
in her house; that she was sick and was lying in her bed, but that she sat up to sign the will; that she
signed the will with great difficulty; that she was signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he
knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a
witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased,
Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it
before he (the witness) did; that he did not know whether anybody there told her to sign the will or
not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had
signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen
Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a screen
at the door and he could not see; that he was called a a witness to sign the second will and was told
by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far from
the patient, in the house but outside the room where the patient was; that the will was signed by Paez
and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias
signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see the table
on which the will was written at the time it was signed or not; that there were many people in the
house; that he remembered the names of Pedro and Lorenzo; that he could not remember the names
of any others; that the will remained on the table after he signed it; that after he signed the will he
went to the room where Tomasa was lying; that the will was left on the table outside; that Tomasa
was very ill; that he heard the people asking Tomasa to sign the will after he was (the witness) had
signed it; that he saw Paez sign the will, that he could not remember whether Anselmo Zacarias had
signed the will, because immediately after he and Paez signed it, he left because he was hungry; that
the place where the table was located was in the same house, on the floor, about two steps down
from the floor on which Tomasa was.

Page 53 of 72
Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa
Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A).
Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had
treated her in the month of August; that he visited her first on the 8th day of August; that he visited
her again on the 9th and 10th days of August; that on the first visit he found the sick woman
completely weak very weak from her sickness, in the third stage of tuberculosis; that she was lying
in bed; that on the first visit he found her with but little sense, the second day also, and on the third
day she had lost all her intelligence; that she died on the 11th of August; tat he was requested to
issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or
anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he
believed, by the stage of uraemia from which she was suffering.

Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during
the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that
Tomasa was dead; that he had written the will exhibit A; that it was all in his writing except the last
part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request of the
uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed him as
to the terms of the will ; that the deceased had not spoken to him concerning the terms of the will; that
the will was written in the dining room of the residence of the deceased; that Tomasa was in another
room different from that in which the will was written; that the will was not written in the presence of
Tomasa; that he signed the will as a witness in the room where Tomasa was lying; that the other
witnesses signed the will in the same room that when he went into the room where the sick woman
was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo came to the
bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was lying
stretched out on the bed and two women, who were taking care of her, helped her to sit up,
supporting her by lacing their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the best inside the room; when he came back again to the sick
bed the will was signed and was again in the hands of Lorenzo; that he did not see Tomasa sign the
will because he withdrew from the room; that he did not know whether Tomasa had been informed of
the contents of the will or not; he supposed she must have read it because Lorenzo turned the will
over to her; that when Lorenzo asked her to sign the will, he did not know what she said he could
not hear her voice; that he did not know whether the sick woman was him sign the will or not; that he
believed that Tomasa died the next day after the will had been signed; that the other two witnesses,
Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman; that he saw
them sign the will and that they saw him sign it; that he was not sure whether the testatrix could have
seen them at the time they signed the will or not; that there was a screen before the bed; that he did
not think that Lorenzo had been giving instructions as to the contents of the will; that about ten or
fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before she started to sign it;
that the pen with which she signed the will as given to her and she held it.

Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong
and that she was dead; that she had made two wills; that the first one was written by La O and the
second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was
present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that
the second will was exactly like the first; that Tomasa said she could not sign it.

Page 54 of 72
On cross examination he testified that there was a lot of visitors there; that Zacarias was not there;
that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the
first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There
is nothing in their testimony, however, which in our opinion is important.

In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that
she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa
during the last week of her illness; that Tomasa had made two wills; that she was present when the
second one was executed; that a lawyer had drawn the will in the dining room and after it had been
drawn and everything finished , it was taken to where Doa Tomasa was, for her signature; that it
was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that
there were many other people present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask
Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will was the
same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take hold
of the pen and try to sign it but she did not see the place she signed the document, for the reason that
she left the room; that she saw Tomasa sign the document but did not see on what place on the
document she signed; and that a notary public came the next morning; that Tomasa was able to
move about in the bed; that she had seen Tomasa in the act of starting to write her signature when
she told her to get her some water.

Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga
Yap Caong and knew that she had made a will; that he saw the will at the time it was written; that he
saw Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that
Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table
near the bed; that the table was outside the curtain or screen and near the entrance to the room
where Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and
that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions;
that Tomasa had said that she sign the will; that the will was on a table near the bed of Tomasa; that
Tomasa, from where she was lying in the bed, could seethe table where the witnesses had signed the
will.

During the rehearing certain other witnesses were also examined; in our opinion, however, it is
necessary to quote from them for the reason that their testimony in no way affects the preponderance
of proof above quoted.

At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached
the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to
the record and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap
Caong and admitted it to probate and ordered that the administrator therefore appointed should
continue as such administrator. From that order the protestants appealed to this court, and made the
following assignments of error:
Page 55 of 72
 I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa
Yap Caong, without the intervention of any external influence on the part of other persons.

II. The court erred in declaring that the testator had clear knowledge and knew what she was
doing at the time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the
first will, Exhibit 1, is identical with that which appears in the second will, Exhibit A.

IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the
law.

With reference to the first assignment of error, to wit, that undue influence was brought to bear upon
Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower
court found that no undue influence had been exercised over the mind of the said Tomasa Elizaga
Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa, one
Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other hand,
there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution
of the will, to influence her mind in any way. The lower court having had an opportunity to see, to
hear, and to note the witnesses during their examination reached the conclusion that a
preponderance of the evidence showed that no undue influence had been used. we find no good
reason in the record for reversing his conclusions upon that question.

With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of
sound mind and memory at the time of the execution of the will, we find the same conflict in the
declarations of the witnesses which we found with reference to the undue influence. While the
testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong,
yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of
the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to
her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the
will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there
was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of
sound mind and memory and in the possession of her faculties at the time she signed this will. In view
of the conflict in the testimony of the witnesses and the finding of the lower court, we do not feel
justified in reversing his conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court committed an error in
declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit
1), is identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be said:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1),
was not the question presented to the court. The question presented was whether or not she had duly
executed the will of August 11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of
August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose
Page 56 of 72
of her property, in accordance with the provisions of law, up to the very last of moment her life. She
had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a
new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way
sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement that "The signature of
Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in
her second will (Exhibit A)" the inference that she had not signed the second will and all the argument
of the appellants relating to said third assignment of error is based upon the alleged fact that Tomasa
Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her write the
name "Tomasa." One of the witnesses testified that she had written her full name. We are of the
opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any
portion of her name tot he will, with the intention to sign the same, that the will amount to a signature.
It has been held time and time again that one who makes a will may sign the same by using a mark,
the name having been written by others. If writing a mark simply upon a will is sufficient indication of
the intention of the person to make and execute a will, then certainly the writing of a portion or all of
her name ought to be accepted as a clear indication of her intention to execute the will. (Re Goods of
Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs.
Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of
Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)

We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited
by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very
suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was
found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an
ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her property. The will was presented for probate.
The probation was opposed upon the ground that the same did not contain the signature of the
deceased. That was the only question presented to the court, whether the signature, in the form
above indicated, was a sufficient signature to constitute said paper the last will and testament of
Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In
deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to have arisen either in
England or the United States; but the principle on which the decisions already referred to were
based, especially those in regard to signing by initials only, are equally applicable to the
present case, and additional force is given to them by the decisions as to what constitutes a
binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9
Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.),
446.)

The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held
to "sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient,
under the law requiring a signature by the person making a will, to make his mark, to place his initials
or all or any part of his name thereon. In the present case we think the proof shows, by a large
preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least sign
her given name "Tomasa," and that is sufficient to satisfy the statute.
Page 57 of 72
With reference to the fourth assignment of error, it may be said that the argument which was
preceded is sufficient to answer it also.

During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap
Caong did not sign her name in the presence of the witnesses and that they did not sign their names
in their presence nor in the presence of each other. Upon that question there is considerable conflict
of proof. An effort was made to show that the will was signed by the witnesses in one room and by
Tomasa in another. A plan of the room or rooms in which the will was signed was presented as proof
and it was shown that there was but one room; that one part of the room was one or two steps below
the floor of the other; that the table on which the witnesses signed the will was located upon the lower
floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for
her to see the table on which the witnesses signed the will. While the rule is absolute that one who
makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in
the presence of each other, as well as in the presence of the one making the will, yet, nevertheless,
the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made
where it is possible for each of the necessary parties, if they desire to see, may see the signatures
placed upon the will.

In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to
reach conclusions that are absolutely free from doubt. Great weight must be given by appellate courts
who do not see or hear the witnesses, to the conclusions of the trial courts who had that opportunity.

Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa
Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all her
faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court
admitting said will to probate is hereby affirmed with costs.

Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.

Page 58 of 72
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
Page 59 of 72
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 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.

Page 60 of 72
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
Page 61 of 72
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 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

Page 62 of 72
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.

Page 63 of 72
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 (Sgd.) "ROSENDA

EVANGELISTA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado
is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the
judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to
certify that the will was signed on all the left margins of the three pages and at the end of the will by
Atty. Florentino Javier at the express request of the testator in the presence of the testator and each
and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty.
Javier at the former's request said testator has written a cross at the end of his name and on the left
margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused
Atty. Florentino Javier to write the testator's name under his express direction, as required by section
618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from
the decision of the Court of Appeals) argues, however, that there is no need for such recital because
the cross written by the testator after his name is a sufficient signature and the signature of Atty.

Page 64 of 72
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared to
liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

Page 65 of 72
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
Page 66 of 72
Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed
the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order requiring
him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and
all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the
testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the pages
thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the signature
of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at
the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
Page 67 of 72
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

Page 68 of 72
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only two
pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the win is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil.
405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component pages is sufficiently attained,
no intentional or deliberate deviation existed, and the evidence on record attests to the
Page 69 of 72
 fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may
sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion
for appointment of a special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.

SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.

Teehankee, J, is on leave.

Page 70 of 72
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
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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.

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