59065110 Succession Reviewer

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WILLS AND SUCCESSION

I . CONCEPT OF SUCCESSION

Art. 774. Succession is a mode of acquisition by virtue of which theproperty, rights and obligations to the extent of the value of theinheritance, of a person are transmitted through his death to anotheror others either by his will or by operation of law. (n)

II. KINDS OF SUCCESSION:

A. TESTAMENTARY

Art. 779. Testamentary succession is that which results from thedesignation of an heir, made in a will executed in the formprescribed by law. (n)

B. LEGAL OR INTESTATE

Art. 960. Legal or intestate succession takes place:

1. If a person dies without a will, or with a void will, orone which has subsequently lostits validity;

2. When the will does not institute an heir to, ordispose of all the property belonging to the testator. Insuch case, legal succession shall take place only with respectto the property of which the testator has not disposed;

3. If the suspensive condition attached to theinstitution of heir does not happen or is not fulfilled, or ifthe heir dies before the testator, or repudiates theinheritance, there being no substitution, and no right ofaccretion takes place;

4. When the heir instituted is incapable of succeeding,except in cases provided in this Code. (912a)C. MIXED

Art. 780. Mixed succession is that effected partly by will and partly byoperation of law.

D. CONTRACTUAL (superseded by Art. 84 of the Family Code)

III. TESTAMENTARY SUCCESSION

A. WILLS

1. DEFINITION

Art. 783. A will is an act whereby a person is permitted, with theformalities prescribed by law, to control to a certain degree thedisposition of this estate, to take effect after his death. (667a)

B. CHARACTERISTICS OF WILLS

1. Purely statutory, formal

Art. 783

2. Free and voluntary

Art. 839. The will shall be disallowed in any of the following cases:

1. If the formalities required by law have not been complied with;

2. If the testator was insane, or otherwise mentally incapable ofmaking a will, at the time of its execution;

3. If it was executed through force or under duress, or theinfluence of fear, or threats;

4. If it was procured by undue and improper pressure andinfluence, on the part of the beneficiary or of some otherperson;

5. If the signature of the testator was procured by fraud;

6. If the testator acted by mistake or did not intend that theinstrument he signed should be his will at the time of affixing hissignature thereto. (n)

3. Essentially revocable

Art. 828. A will may be revoked by the testator at any time before hisdeath. Any waiver or restriction of this right is void. (737a)

4. Testator must have testamentary capacity

a. Not prohibited by law

Art. 796. All persons who are not expressly prohibited by law may make awill. (662)

b. 18 years old or over

Art. 797. Persons ofeither sex under eighteen years of age cannotmake a will. (n)

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c. Of sound and disposing mind

Art. 798. In order to make a will it is essential that the testator be ofsound mind at the time of its execution. (n)

5. Disposition must be mortis causa

Art. 777. The rights to the succession are transmitted from the momentof the death of the decedent. (657a)VITUG VS CA 183 SCRA 755

Facts:This case is a chapter in an earlier suit decided by this Court 1 involving theprobate of the two wills of the late Dolores Luchangco Vitug, who died inNew York, U. S.A.naming private respondent Rowena Faustino-Coronaexecutrix. In our said decision, we upheld the appointment of Nenita Alonteas co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's)widower, petitioner Romarico G. Vitug, pending probate.On January 13,1985, Romarico G. Vitug filed a motion asking for authority from theprobate court to sell certain shares of stock and real properties belongingto the estate to cover allegedly his advances to the estate in the sum ofP667,731.66, plus interests, which he claimed were personal funds.RowenaCorona opposed the motion to sell on the ground that the same fundswithdrawn from savings account No. 35342-038 were conjugal partnershipproperties and part of the estate, and hence, there was allegedly no groundfor reimbursement. She also sought his ouster for failure to include thesums in question for inventory and for "concealment of funds belonging tothe estate."Vitug insists that the said funds are his exclusive propertyhaving acquired the same through a survivorship agreement executed withhis late wife and the bank on June 19, 1970. The agreement provides:

We hereby agree with each other and with the BANK OF AMERICANNATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to asthe BANK), that all money now or hereafter deposited by us or any or eitherof us with the BANK in our joint savings current account shall be theproperty of all or both of us and shall be payable to and collectible orwithdrawable by either or any of us during our lifetime, and after the deathof either or any of us shall belong to and be the sole property of thesurvivor or survivors, and shall be payable to and collectible orwithdrawable by such survivor or survivors.

We further agree with each other and the BANK that the receipt or check ofeither, any or all of us during our lifetime, or the receipt or check of thesurvivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge ofthe BANK for such payment or withdrawal.

The trial courts upheld the validity of this agreement and granted"the motion to sell some of the estate of Dolores L. Vitug, the

proceeds of which shall be used to pay the personal funds ofRomarico Vitug in the total sum of P667,731.66 ... ."

On the other hand, the Court of Appeals, in the petition for certiorari filedby the herein private respondent, held that the above-quotedsurvivorship agreement constitutes a conveyance mortis causawhich "did not comply with the formalities of a valid will asprescribed by Article 805 of the Civil Code," and secondly,assuming that it is a mere donation inter vivos, it is a prohibiteddonation under the provisions of Article 133 of the Civil Code.

In his petition, Vitug, the surviving spouse, assails the appellate court'sruling on the strength of our decisions in Rivera v. People's Bank and TrustCo.and Macam v. Gatmaitan in which we sustained the validity of"survivorship agreements" and considering them as aleatory contracts.

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa ,which should be embodied in a will. A will has been defined as "apersonal, solemn, revocable and free act by which a capacitatedperson disposes of his property and rights and declares or complieswith duties to take effect after his death."

In other words, the bequest ordevice must pertain to the testator.

In this case, the monies subject of savings account No. 35342-038were in the nature of conjugal funds In the case relied on, Rivera v.People's Bank and Trust Co., we rejected claims that a survivorshipagreement purports to deliver one party's separate properties infavor of the other, but simply, theirjoint holdings:

... Such conclusion is evidently predicated on the assumption thatStephenson was the exclusive owner of the funds-deposited in the bank,which assumption was in turn based on the facts (1) that the accountwas originally opened in the name of Stephenson alone and (2)that Ana Rivera "served only as housemaid of the deceased." But itnot infrequently happens that a person deposits money in the bank in thename of another; and in the instant case it also appears that Ana Riveraserved her master for about nineteen years without actuallyreceiving her salary from him. The fact that subsequentlyStephenson transferred the account to the name of himself and/orAna Rivera and executed with the latter the survivorshipagreement in question although there was no relation of kinshipbetween them but only that of master and servant, nullifies theassumption that Stephenson was the exclusive owner of the bank account.In the absence, then, of clear proof to the contrary, we must give full faithand credit to the certificate of deposit which recites in effect that the fundsin question belonged to Edgar Stephenson and Ana Rivera; that they were

joint (and several) owners thereof; and that either of them could withdraw

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any part or the whole of said account during the lifetime of both, and thebalance, if any, upon the death of either, belonged to the survivor.

In Macam v. Gatmaitan, 18 it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contractwhereby, according to article 1790 of the Civil Code, one of theparties or both reciprocally bind themselves to give or dosomething as an equivalent for that which the other party is togive or do in case of the occurrence of an event which is uncertainor will happen at an indeterminate time. As already stated, Leonardawas the owner of the house and Juana of the Buick automobile and most ofthe furniture. By virtue of Exhibit C, Juana would become the owner of thehouse in case Leonarda died first, and Leonarda would become the ownerof the automobile and the furniture if Juana were to die first. In this mannerLeonarda and Juana reciprocally assigned their respective property to oneanother conditioned upon who might die first, the time of deathdetermining the event upon which the acquisition of such right by the oneor the other depended. This contract, as any other contract, is binding uponthe parties thereto. Inasmuch as Leonarda had died before Juana, the latterthereupon acquired the ownership of the house, in the same manner asLeonarda would have acquired the ownership of the automobile and of thefurniture if Juana had died first.

Neither is the survivorship agreement a donation inter vivos, forobvious reasons, because it was to take effect after the death ofone party. Secondly, it is not a donation between the spousesbecause it involved no conveyance of a spouse's own properties tothe other.

The validity of the contract seems debatable by reason of its"survivor-take-all" feature, but in reality, that contract imposed amere obligation with a term, the term being death. Suchagreements are permitted by the Civil Code.

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or bothreciprocally bind themselves to give or to do something inconsideration of what the other shall give or do upon thehappening of an event which is uncertain, or which is to occur at anindeterminate time.

nder the aforequoted provision, the fulfillment of an aleatory contractdepends on either the happening of an event which is (1)"uncertain," (2) "which is to occur at an indeterminate time." Asurvivorship agreement, the sale of a sweepstake ticket, atransaction stipulating on the value of currency, and insurance

have been held to fall under the first category, while a contract for lifeannuity or pension under Article 2021, et sequentia, has beencategorized under the second. In either case, the element of risk ispresent. In the case at bar, the risk was the death of one party andsurvivorship of the other.

The conclusion is accordingly unavoidable that Mrs. Vitug havingpredeceased her husband, the latter has acquired upon her deatha vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court orderedtheir inclusion in the inventory of assets left by Mrs. Vitug, we hold that thecourt was in error. Being the separate property of petitioner, it forms nomore part of the estate of the deceased.

6. Testator must have animus testandi purpose is to transfertitle via a testamentary disposition in contemplation ofdeath, to take effect upon testators death.

C. INTERPRETATION OF WILLS

1. In favor of validityArt. 788. If a testamentary disposition admits of different interpretations, incase of doubt, that interpretation by which the disposition is to beoperative shall be preferred.

2. In case of ambiguities

Art. 789. When there is an imperfect description, or when no person orproperty exactly answers the description, mistakes and omissions mustbe corrected, if the error appears from the context of the will orfrom extrinsic evidence, excluding the oral declarations of the testatoras to his intention; and when an uncertainty arises upon the face ofthe will, as to the application of any of its provisions, the testator'sintention is to be ascertained from the words of the will, taking into

consideration the circumstances under which it was made, excluding suchoral declarations. (n)

a. Latent or intrinsic ambiguity that which does not appear on theface of the will and is discovered only by extrinsic evidence;

1. When there is an imperfect description of the heir, legatee, ordevisee;

2. When there is an imperfect description of the gift being given;3. When only one recipient is designated but it turns out, there are

two or more who fit the description;

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b. Patent or extrinsic ambiguity that which appears on the face ofthe will itself; by examining the provisions itself, it is evident thatit is not clear;

How to cure ambiguities:

a. By examining the will itself;

b. Extrinsic evidence such as written declarations of the testator (oraldeclarations not allowed since contrary to the dead mans statute)

3. Interpretation of words

Art. 790. The words of a will are to be taken in their ordinary andgrammatical sense, unless a clear intention to use them in another sensecan be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense,unless the context clearly indicates a contrary intention, or unless itsatisfactorily appears that he was unacquainted with such technical sense.(675a)

4. Interpretation as a whole

Art. 791. The words of a will are to receive an interpretation which willgive to every expression some effect, rather than one which will renderany of the expressions inoperative; and of two modes of interpreting awill, that is to be preferred which will prevent intestacy. (n)

5. Separability of invalid provisions

Art. 792. The invalidity of one of several dispositions contained in a willdoes not result in the invalidity of the other dispositions,unless itis to be presumed that the testator would not have made suchother dispositions if the first invalid disposition had not been made .(n)

6. After-acquired property

Art. 793. Property acquired after the making of a will shall only passthereby, as if the testator had possessed it at the time of making the will,should it expressly appear by the will that such was his intention. (n)

7. Extent of interest covered

Art. 794. Every devise or legacy shall cover all the interest which thetestator could device or bequeath in the property disposed of,unless it clearly appears from the will that he intended to convey a lessinterest. (n)

The entire interest of the testator in the property is given, not more notless;

D. LAW GOVERNING FORMa. As to the time of execution

Art. 795. The validity of a will as to its form depends upon the

observance of the law in force at the time it is made. (n)

Kinds of validity

A. Extrinsic validity refers to the forms and solemnities neededa. What must be observed is the law in force at the time the

will is executed;b. What law of the land must be observed depends:

i. If the testator is a Filipino, he can observePhilippine laws; or the laws of the country wherehe may be; laws of the country where heexecutes the will;

ii. If the testator is an alien who is abroad, he canfollow the law of his domicile; or his nationality;or Philippine laws; or where he executes the will;

iii. If the testator is an alien in the Philippines, hecan follow the law of his nationality or the lawsof the Philippines, since he executes the willhere;

B. Intrinsic validity refers to the legality of the provisions in aninstrument

a. Successional rights are governed by the law in force atthe TIME OF THE DECEDENTS DEATH;

b. Laws that must be observed depends: under PhilippineLaw:

i. National law of the decedent; law of his countryor nationality; regardless of the place ofexecution and the place of death;

ii. RENVOI DOCTRINE: referring back to the forumof the problem

1. Where the conflict rules under thedecedents national law refers thematter to the law of the domicile;

iii. Intestate and testamentary succession both withrespect to:

1. The order of succession2. The amount of successional rights3. And the intrinsic validity of

testamentary provisionsShall be regulated by the national law of theperson whose succession is under consideration,whatever may be the nature of the property, and

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regardless of the country where said propertymay be found.

b. As to the place of execution

Art. 17. The forms and solemnities of contracts, wills, and other public

instruments shall be governed by the laws of the country in whichthey are executed.

Art. 810. A person may execute a holographic will which must be entirelywritten, dated, and signed by the hand of the testator himself. It issubject to no other form, and may be made in or out of thePhilippines, and need not be witnessed. (678, 688a)

Art. 815. When a Filipino is in a foreign country, he is authorized tomake a will in any of the forms established by the law of the countryin which he may be. Such will may be probated in the Philippines. (n)

Art. 816. The will of an alien who is abroad produces effect in thePhilippines if made with the formalities prescribed by the law ofthe place in which he resides, or according to the formalitiesobserved in his country, or in conformity with those which this Codeprescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject ofanother country, which is executed in accordance with the law of thecountry of which he is a citizen or subject, and which might be provedand allowed by the law of his own country, shall have the same effect asif executed according to the laws of the Philippines. (n)

Art. 818. Two or more persons cannot make a will jointly, or in thesame instrument, either for their reciprocal benefit or for the benefitof a third person. (669)

Art. 819. Wills, prohibited by the preceding article, executed byFilipinos in a foreign country shall not be valid in the Philippines ,even though authorized by the laws of the country where they may havebeen executed. (733a)

E. LAW GOVERNING CONTENT

a. As to time

Art. 2263. Rights to the inheritance of a person who died, with orwithout a will, before the effectivity of this Code, shall begoverned by the Civil Code of 1889, by other previous laws, and bythe Rules of Court. The inheritance of those who, with or without a will,die after the beginning of the effectivity of this Code, shall be adjudicated

and distributed in accordance with this new body of laws and by the Rulesof Court; but the testamentary provisions shall be carried out insofar asthey may be permitted by this Code. Therefore, legitimes, betterments,legacies and bequests shall be respected; however, their amount shall bereduced if in no other manner can every compulsory heir be given his fullshare according to this Code. (Rule 12a)

b. As to successional rights

Art. 16. Real property as well as personal property is subject to the law ofthe country where it is stipulated.

CAYETANO VS LEONIDES 129 SCRA 524

On January 31, 1977, Adoracion C. Campos died, leaving her father,petitioner Hermogenes Campos and her sisters, private respondentNenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as thesurviving heirs. As Hermogenes Campos was the only compulsory heir,he executed an Affidavit of Adjudication under Rule 74, Section I of theRules of Court whereby he adjudicated unto himself the ownership of theentire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia fileda petition for the reprobate of a will of the deceased, AdoracionCampos, which was allegedly executed in the United States and forher appointment as administratrix of the estate of the deceasedtestatrix.In her petition, Nenita alleged that the testatrix was anAmerican citizen at the time of her death and was a permanentresident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.;

As a general rule, the probate court's authority is limited only tothe extrinsic validity of the will, the due execution thereof, thetestatrix's testamentary capacity and the compliance with therequisites or solemnities prescribed by law. The intrinsic validity ofthe will normally comes only after the court has declared that the will hasbeen duly authenticated. However, where practical considerations demandthat the intrinsic validity of the will be passed upon, even before it isprobated, the court should meet the issue. (Maninang vs. Court of Appeals,114 SCRA 478).

the private respondents have sufficiently established thatAdoracion was, at the time of her death, an American citizen and apermanent resident of Philadelphia, Pennsylvania, U.S.A.Therefore, under Article 16 par. (2) and 1039 of the Civil Codewhich respectively provide:

Art. 16 par. (2).

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However, intestate and testamentary successions, both withrespect to the order of succession and to the amount ofsuccessional rights and to the intrinsic validity of testamentaryprovisions, shall be regulated by the national law of the personwhose succession is under consideration, whatever may be the nature ofthe property and regardless of the country wherein said property may befound.

Art. 1039.

Capacity to succeed is governed by the law of the nation of thedecedent.

the law which governs Adoracion Campo's will is the law ofPennsylvania, U.S.A., which is the national law of the decedent.Although the parties admit that the Pennsylvania law does not provide forlegitimes and that all the estate may be given away by the testatrix to acomplete stranger, the petitioner argues that such law should not applybecause it would be contrary to the sound and established public policy andwould run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the

provisions of the will, as provided for by Article 16(2) and 1039 ofthe Civil Code, the national law of the decedent must apply.

This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358)wherein we ruled:

It is therefore evident that whatever public policy or good customsmay be involved in our system of legitimes, Congress has notintended to extend the same to the succession of foreignnationals. For it has specifically chosen to leave, inter alia, the amount ofsuccessional rights, to the decedent's national law. Specific provisions mustprevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of theState of Texas, U.S.A., and under the law of Texas, there are no forced heirsor legitimes. Accordingly, since the intrinsic validity of the provisionof the will and the amount of successional rights are to bedetermined under Texas law, the Philippine Law on legitimescannot be applied to the testacy of Amos G. Bellis.

F. SOLEMNITIES OF WILLS

a. General requirements

Art. 804. Every will must be in writing and executed in a language ordialect known to the testator. (n)

b. Specific requirements

Art. 805. Every will, other than a holographic will, must besubscribed at the end thereof by the testatorhimself or by the testator's name written by someother person in his presence, and by his expressdirection, and attested and subscribed by three ormore credible witnesses in the presence of thetestator and of one another.

The testator or the person requested by him towrite his name and the instrumental witnesses ofthe will, shall also sign, as aforesaid, each and everypage thereof, except the last, on the left margin, andall the pages shall be numbered correlatively inletters placed on the upper part of each page.

The attestation shall state the number of pagesused upon which the will is written, and the fact that thetestator signed the will and every page thereof, orcaused some other person to write his name, under

his express direction, in the presence of the instrumentalwitnesses, and that the latter witnessed and signed thewill and all the pages thereof in the presence of thetestator and of one another.

Ifthe attestation clause is in a language not knownto the witnesses, it shall be interpreted to them.(n)

Art. 806. Every will must be acknowledged before a notarypublic by the testator and the witnesses. The notarypublic shall not be required to retain a copy of the will, orfile another with the Office of the Clerk of Court. (n)

SONOZA VS HONRADO

Should disciplinary action be taken against respondent judge for havingadmitted to probate a will, which on its face is void because it is written inEnglish, a language not known to the illiterate testatrix, and which isprobably a forged will because she and the attesting witnesses did notappear before the notary as admitted by the notary himself?

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (PhilippineScouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec.Proc. No. 7816). They were childless. They reared a boy named Agapitowho used the surname Suroza and who considered them as his parents asshown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of

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CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapitowas 5 years old when Mauro married Marcelina in 1923).

Agapito and Nenita begot a child named Lilia who became a medicaltechnologist and went abroad. Agapito also became a soldier. He wasdisabled and his wife Nenita was appointed as his guardian in 1953 whenhe was declared an incompetent in Special Proceeding No. 1807 of the

Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No.08654-R).

On a date not indicated in the record, the spouses Antonio Sy andHermogena Talan begot a child named Marilyn Sy, who, when afew days old, was entrusted to Arsenia de la Cruz (apparently a girlfriend of Agapito) and who was later delivered to MarcelinaSalvador Suroza who brought her up as a supposed daughter ofAgapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed withMarcelina but was not legally adopted by Agapito.

Marcelina supposedly executed a notarial will in Manila on July 23,1973, when she was 73 years old. That will which is in English wasthumbmarked by her. She was illiterate. Her letters in English to

the Veterans Administration were also thumbmarked by her (pp.38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to hersupposed granddaughter Marilyn.

In an order dated March 31, 1975, Judge Honrado appointed Marina asadministratrix.Upon motion of Marina, Judge Honrado issued another orderdated April 11, 1975, instructing a deputy sheriff to eject the occupants ofthe testatrix's house, among whom was Nenita V. Suroza, and to placeMarina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceedingfor the settlement of Marcelina's estate. She and the other occupants of thedecedent's house filed on April 18 in the said proceeding a motion to setaside the order of April 11 ejecting them. They alleged that the decedent'sson Agapito was the sole heir of the deceased, that he has a daughternamed Lilia, that Nenita was Agapito's guardian and that Marilyn was notAgapito's daughter nor the decedent's granddaughter (pp. 52-68, Record oftestate case). Later, they questioned the probate court's jurisdiction toissue the ejectment order.

Nenita further alleged that the institution of Marilyn as heir is void becauseof the preterition of Agapito and that Marina was not qualified to act asexecutrix.

In a motion dated December 5, 1975, for the consolidation of all pendingincidents, Nenita V. Suroza reiterated her contention that the alleged will isvoid because Marcelina did not appear before the notary and because it iswritten in English which is not known to her .

RULING:

We hold that disciplinary action should be taken against respondent judgefor his improper disposition of the testate case which might have resultedin a miscarriage of justice because the decedent's legal heirs and not theinstituted heiress in the void win should have inherited the decedent's

estate.

In this case, respondent judge, on perusing the will and noting that it waswritten in English and was thumbmarked by an obviously illiterate testatrix,could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was alanguage "understood and known" to the testatrix. But in its concludingparagraph, it was stated that the will was read to the testatrix "andtranslated into Filipino language". (p. 16, Record of testate case). Thatcould only mean that the will was written in a language not known to theilliterate testatrix and, therefore, it is void because of the mandatoryprovision of article 804 of the Civil Code that every will must beexecuted in a language or dialect known to the testator. Thus, awill written in English, which was not known to the Igorot testator,

is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause andnotarial acknowledgment where Marcelina Salvador Suroza is repeatedlyreferred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted notonly the anomaly as to the language of the will but also that there wassomething wrong in instituting the supposed granddaughter as sole heiressand giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk ofcourt, respondent judge could have noticed that the notary was notpresented as a witness.

GARCIA VS LACUESTA 90 PHIL 489

This is an appeal from a decision of the Court of Appeals disallowing the willof Antero Mercado dated January 3, 1943. The will is written in the Ilocanodialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoingtestament of Antero Mercado was signed by himself and also by us belowhis name and of this attestation clause and that of the left margin of thethree pages thereof. Page three the continuation of this attestation clause;this will is written in Ilocano dialect which is spoken and understood by thetestator, and it bears the corresponding number in letter which compose ofthree pages and all them were signed in the presence of the testator and

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witnesses, and the witnesses in the presence of the testator and all andeach and every one of us witnesses.

The will appears to have been signed by Atty. Florentino Javierwho wrote the name of Antero Mercado, followed below by "Areugo del testator" and the name of Florentino Javier. AnteroMercado is alleged to have written a cross immediately after his

name. The Court of Appeals, reversing the judgement of the Court of FirstInstance of Ilocos Norte, ruled that the attestation clause failed (1) tocertify that the will was signed on all the left margins of the three pagesand at the end of the will by Atty. Florentino Javier at the express request ofthe testator in the presence of the testator and each and every one of thewitnesses; (2) to certify that after the signing of the name of the testator byAtty. Javier at the former's request said testator has written a cross at theend of his name and on the left margin of the three pages of which the willconsists and at the end thereof; (3) to certify that the three witnessessigned the will in all the pages thereon in the presence of the testator andof each other.

In our opinion, the attestation clause is fatally defective for failingto state that Antero Mercado caused Atty. Florentino Javier towrite the testator's name under his express direction, as required

by section 618 of the Code of Civil Procedure.

It is not here pretended that the cross appearing on the will is the usualsignature of Antero Mercado or even one of the ways by which he signedhis name. After mature reflection, we are not prepared to liken the meresign of the cross to a thumbmark, and the reason is obvious. The crosscannot and does not have the trustworthiness of a thumbmark.

BALONAN VS ABELLANA 109 PHIL 358

It appears on record that the last Will and Testament (Exhibit "A"), which issought to be probated, is written in the Spanish language and consists oftwo (2) typewritten pages (pages 4 and 5 of the record) double space. Thefirst page is signed by Juan Bello and under his name appearstypewritten "Por la testadora Anacleta Abellana, residence

Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', andon the second page appears the signature of three (3)instrumental witnesses Blas Sebastian, Faustino Macaso andRafael Ignacio, at the bottom of which appears the signature of T.de los Santos and below his signature is his official designation asthe notary public who notarized the said testament. On the firstpage on the left margin of the said instrument also appear the signatures ofthe instrumental witnesses. On the second page, which is the lastpage of said last Will and Testament, also appears the signature ofthe three (3) instrumental witnesses and on that second page onthe left margin appears the signature of Juan Bello under whosename appears handwritten the following phrase, "Por la Testadora

Anacleta Abellana'. The will is duly acknowledged before Notary PublicAttorney Timoteo de los Santos. (Emphasis supplied)

The appeal squarely presents the following issue: Does the signature of Dr.Juan A. Abello above the typewritten statement "Por la Testadora AnacletaAbellana . . ., Ciudad de Zamboanga," comply with the requirements of lawprescribing the manner in which a will shall be executed?

Art. 805.Every will, other than a holographic will, must be subscribed atthe end thereof by the testator himself or by thetestator's name written by some other person inhis presence, and by his express direction, andattested and subscribed by three or more crediblewitness in the presence of the testator and of oneanother. (Emphasis supplied.)

Section 618 of the Code of Civil Procedure (Act No. 190) which reads asfollows:

No will, except as provided in the preceding section shallbe valid to pass any estate, real or personal, nor chargeor affect the same, unless it be in writing and signedby the testator, or by the testator's name writtenby some other person in his presence, and by hisexpress direction, and attested and subscribed bythree or more credible witnesses in the presence of thetestator and of each other. . . . (Emphasis supplied).

Applying this provision this Court said in the case of Ex Parte PedroArcenas, et al., Phil., 700:

It will be noticed from the above-quoted section 618 of the Code of CivilProcedure that where the testator does not know how, or is unable, to sign,it will not be sufficient that one of the attesting witnesses signsthe will at the testator's request, the notary certifying thereto asprovided in Article 695 of the Civil Code, which, in this respect, wasmodified by section 618 above referred to, but it is necessary that thetestator's name be written by the person signing in his stead inthe place where he could have signed if he knew how or was ableto do so, and this in the testator's presence and by his expressdirection; so that a will signed in a manner different than that prescribedby law shall not be valid and will not be allowed to be probated.

In the case at bar the name of the testatrix, Anacleta Abellana, does notappear written under the will by said Abellana herself, or by Dr. Juan Abello.

There is, therefore, a failure to comply with the express requirement in thelaw that the testator must himself sign the will, or that his name be affixedthereto by some other person in his presence and by his express direction.

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NERA VS RIMANDO 18 PHIL 450

The only question raised by the evidence in this case as to the dueexecution of the instrument propounded as a will in the court below, iswhether one of the subscribing witnesses was present in the small

room where it was executed at the time when the testator and theother subscribing witnesses attached their signatures; or whether atthat time he was outside, some eight or ten feet away, in a large roomconnecting with the smaller room by a doorway, across which was hung acurtain which made it impossible for one in the outside room to see thetestator and the other subscribing witnesses in the act of attaching theirsignatures to the instrument.

A majority of the members of the court is of opinion that this subscribingwitness was in the small room with the testator and the other subscribingwitnesses at the time when they attached their signatures to theinstrument, and this finding, of course, disposes of the appeal andnecessitates the affirmance of the decree admitting the document toprobate as the last will and testament of the deceased.

The true test of presence of the testator and the witnesses in theexecution of a will is not whether they actually saw each othersign, but whether they might have been seen each other sign, hadthey chosen to do so, considering their mental and physicalcondition and position with relation to each other at the momentof inscription of each signature.

But it is especially to be noted that the position of the parties with relationto each other at the moment of the subscription of each signature, must besuch that they may see each other sign if they choose to do so. This, ofcourse, does not mean that the testator and the subscribing witnesses maybe held to have executed the instrument in the presence of each other if itappears that they would not have been able to see each other sign at thatmoment, without changing their relative positions or existing conditions

(In the case of Jaboneta vs Gustilo:The purpose of a statutory requirement that the witness sign in thepresence of the testator is said to be that the testator may have ocularevidence of the identity of the instrument subscribed by the witness andhimself, and the generally accepted tests of presence are vision and mentalapprehension.

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it issufficient if the witnesses are together for the purpose ofwitnessing the execution of the will, and in a position to actuallysee the testator write, if they choose to do so; and there are manycases which lay down the rule that the true test of vision is not whether thetestator actually saw the witness sign, but whether he might have seen him

sign, considering his mental and physical condition and position at the timeof the subscription.)

And the decision merely laid down the doctrine that the question whetherthe testator and the subscribing witnesses to an alleged will sign theinstrument in the presence of each other does not depend upon proof ofthe 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 existingconditions and their position with relation to each other were such that bymerely casting the eyes in the proper direction they could have seen eachother sign.

TABOADA VS ROSAL 118 SCRA 195

In the petition for probate filed with the respondent court, the petitionerattached the alleged last will and testament of the late Dorotea Perez.Written in the Cebuano-Visayan dialect, the will consists of two pages. Thefirst page contains the entire testamentary dispositions and is signed at theend or bottom of the page by the testatrix alone and at the left hand

margin by the three (3) instrumental witnesses. The second page whichcontains the attestation clause and the acknowledgment is signed at theend of the attestation clause by the three (3) attesting witnesses and at theleft hand margin by the testatrix.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued thequestioned order denying the probate of the will of Dorotea Perez for wantof a formality in its execution.

Subsequently, the new Judge denied the motion for reconsideration as wellas the manifestation and/or motion filed ex parte. In the same order ofdenial, the motion for the appointment of special administrator waslikewise denied because of the petitioner's failure to comply with the orderrequiring him to submit the names of' the intestate heirs and theiraddresses.

For the validity of a formal notarial will, does Article 805 of the Civil Coderequire that the testatrix and all the three instrumental and attestingwitnesses sign at the end of the will and in the presence of the testatrixand of one another?

Article 805 of the Civil Code provides:

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

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The testator or the person requested by him to write his name andthe 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 placedon the upper part of each page.

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

If the attestation clause is in a language not known to the witnesses, it shallbe interpreted to them;

The respondent Judge interprets the above-quoted provision of law torequire that, for a notarial will to be valid, it is not enough that only thetestatrix signs at the "end" but the three subscribing witnesses must alsosign 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 thewill itself but also the signature of the testator. It is not sufficientcompliance to sign the page, where the end of the will is found, at the lefthand margin of that page.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must besubscribed or signed at its end by the testator himself or by the testator'sname written by another person in his presence, and by his expressdirection, and attested and subscribed by three or more credible witnessesin the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribedAttestation consists in witnessing the testator's execution of the will in

order to see and take note mentally that those things are, done which thestatute requires for the execution of a will and that the signature of thetestator exists as a fact. On the other hand, subscription is the signing ofthe witnesses' names upon the same paper for the purpose of Identificationof 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 ourconsidered view that the will in this case was subscribed in amanner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the firstpage 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 theattestation 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 fundamentalobjective permeating the provisions on the law on wills in this projectconsists in the liberalization of the manner of their execution with the endin view of giving the testator more freedom in expressing his lastwishes but with sufficient safeguards and restrictions to preventthe commission of fraud and the exercise of undue and improperpressure and influence upon the testator. This objective is in accordwith the modern tendency in respect to the formalities in the execution of awill" (Report of the Code commission, p. 103).

In Singson vs Florentino:

The ratio decidendi of these cases seems to be that the attestation clausemust 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 ofinvalidating the will if the deficiency cannot be supplied, not by evidencealiunde, but by a consideration or examination of the will itself.

ICASIANO VS ICASIANO 11SCRA 422

The evidence presented for the petitioner is to the effect that JosefaVillacorte died in the City of Manila on September 12, 1958; that on June 2,1956, the late Josefa Villacorte executed a last will and testament induplicate at the house of her daughter Mrs. Felisa Icasiano at PedroGuevara Street, Manila, published before and attested by threeinstrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by thetestatrix and by the said three instrumental witnesses on the same datebefore 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'slast will and testament, together with former Governor Emilio Rustia ofBulacan, Judge Ramon Icasiano and a little girl. Of the said threeinstrumental witnesses to the execution of the decedent's last will andtestament, attorneys Torres and Natividad were in the Philippines at thetime of the hearing, and both testified as to the due execution andauthenticity of the said will. So did the Notary Public before whom the willwas acknowledged by the testatrix and attesting witnesses, and alsoattorneys Fermin Samson, who actually prepared the document. The latteralso testified upon cross examination that he prepared one original and twocopies of Josefa Villacorte last will and testament at his house in Baliuag,

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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 surrenderedsimultaneously 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, itdoes not contain the signature of one of the attesting witnesses, Atty. Jose

V. Natividad, on page three (3) thereof; but the duplicate copy attached tothe amended and supplemental petition and marked as Exhibit "A-1" issigned by the testatrix and her three attesting witnesses in each and everypage.

On the question of law, we hold that the inadvertent failure of one witnessto affix his signature to one page of a testament, due to the simultaneouslifting of two pages in the course of signing, is not per se sufficient to justifydenial of probate. Impossibility of substitution of this page is assured notonly the fact that the testatrix and two other witnesses did sign thedefective page, but also by its bearing the coincident imprint of the seal ofthe notary public before whom the testament was ratified by testatrix andall three witnesses. The law should not be so strictly and literallyinterpreted as to penalize the testatrix on account of theinadvertence of a single witness over whose conduct she had no

control, where the purpose of the law to guarantee the identity ofthe testament and its component pages is sufficiently attained, nointentional or deliberate deviation existed, and the evidence onrecord attests to the full observance of the statutory requisites.Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at1479 (decision on reconsideration) "witnesses may sabotage the will bymuddling or bungling it or the attestation clause".

CAGRO VS CAGRO 92 PHIL 1032

The main objection insisted upon by the appellant in that the will is fatallydefective, because its attestation clause is not signed by the attestingwitnesses. There is no question that the signatures of the three witnessesto the will do not appear at the bottom of the attestation clause, althoughthe 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 theexecution of the will' required by law to be made by the attestingwitnesses, and it must necessarily bear their signatures. An unsignedattestation clause cannot be considered as an act of the witnesses,since the omission of their signatures at the bottom thereofnegates their participation.

If an attestation clause not signed by the three witnesses at thebottom thereof, be admitted as sufficient, it would be easy to add

such clause to a will on a subsequent occasion and in the absenceof the testator and any or all of the witnesses.

Bautista, Angelo, dissenting:

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 thebottom by the testator and three witnesses (as the instantcase),their signatures on the left margin of said sheet would becompletely purposeless." In such a case, the court said, the requirementof the signatures on the left hand margin was not necessary because thepurpose of the law which is to avoid the substitution of any of the sheetsof the will, thereby changing the testator's dispositions has already beenaccomplished. We may say the same thing in connection with the will underconsideration because while the three instrumental witnesses did not signimmediately by the majority that it may have been only added on asubsequent occasion and not at the uncontradicted testimony of saidwitnesses to the effect that such attestation clause was alreadywritten in the will when the same was signed.

CRUZ VS VILLASOR 54 SCRA 31

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 Publicbefore whom the will was supposed to have been acknowledged.As the third witness is the notary public himself, petitioner argues that theresult is that only two witnesses appeared before the notary public toacknowledge the will.

The notary public before whom the will was acknowledged cannotbe considered as the third instrumental witness since he cannotacknowledge before himself his having signed the will.

Furthermore, the function of a notary public is, among others, toguard against any illegal or immoral arrangement Balinon v. De

Leon, 50 0. G. 583.) That function would defeated if the notarypublic were one of the attesting instrumental witnesses. For thenhe would be interested in sustaining the validity of the will as itdirectly involves him and the validity of his own act. It would placehim in inconsistent position and the very purpose of acknowledgment,which is to minimize fraud (Report of Code Commission p. 106-107), wouldbe thwarted.

To allow the notary public to act as third witness, or one of the attestingand acknowledging witnesses, would have the effect of having only twoattesting witnesses to the will which would be in contravention of theprovisions of Article 80 be requiring at least three credible witnesses to actas such and of Article 806 which requires that the testator and the required

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number of witnesses must appear before the notary public to acknowledgethe will. The result would be, as has been said, that only two witnessesappeared before the notary public for or that purpose. In thecircumstances, the law would not be duly in observed.

GABUCAN VS MANTA 95 SCRA 752

This case is about the dismissal of a petition for the probate of anotarial will on the ground that it does not bear a thirty-centavodocumentary stamp.

The proceeding was dismissed because the requisite documentary stampwas not affixed to the notarial acknowledgment in the will and, hence,according to respondent Judge, it was not admissible in evidence, citingsection 238 of the Tax Code, now section 250 of the 1977 Tax Code, whichreads:

SEC. 238. Effect of failure to stamp taxable document. An instrument,document, or paper which is required by law to be stamped and which hasbeen signed, issued, accepted, or transferred without being duly stamped,shall not be recorded, nor shall it or any copy thereof or any record oftransfer of the same be admitted or used in evidence in any court until the

requisite stamp or stamps shall have been affixed thereto and cancelled.

No notary public or other officer authorized to administer oaths shall addhis jurat or acknowledgment to any document subject to documentarystamp tax unless the proper documentary stamps are affixed thereto andcancelled.

We hold that the lower court manifestly erred in declaring that, because nodocumentary stamp was affixed to the will, there was "no will andtestament to probate" and, consequently, the alleged "action must ofnecessity be dismissed".

What the probate court should have done was to require the petitioner orproponent to affix the requisite thirty-centavo documentary stamp to thenotarial acknowledgment of the will which is the taxable portion of that

document.

That procedure may be implied from the provision of section 238that the non-admissibility of the document, which does not bearthe requisite documentary stamp, subsists only "until the requisitestamp or stamps shall have been affixed thereto and cancelled."

Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that thelack of the documentary stamp on a document does not invalidatesuch document. See Cia. General de Tabacos vs. Jeanjaquet 12Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil.403, 405-6.)

JAVELLANA VS LEDESMA 97 PHIL 258

By order of July 23, 1953, the Court of First Instance of Iloilo admitted toprobate the documents in the Visayan dialect.The contestant, Da. MateaLedesma, sister and nearest surviving relative of said deceased, appealedfrom the decision, insisting that the said exhibits were not executed inconformity with law.

The issue was concentrated into three specific questions: (1) whether thetestament of 1950 was executed by the testatrix in the presence ofthe instrumental witnesses; (2) whether the acknowledgmentclause was signed and the notarial seal affixed by the notarywithout the presence of the testatrix and the witnesses; and (3) ifso, whether the codicil was thereby rendered invalid andineffective. These questions are the same ones presented to us forresolution.

1. Our examination of the testimony on record discloses no groundsfor reversing the trial Court's rejection of the improbable story ofthe witnesses. It is squarely contradicted by the concordanttestimony 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 thepresence of each other, at the house of the decedent on GeneralHughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,and contrary to usage, that either Tabiana or Yap should haveinsisted that Da. Apolinaria, an infirm lady then over 80 years old,should leave her own house in order to execute her will, when allthree witnesses could have easily repaired thither for the purpose.Moreover, the cross-examination has revealed fatal flaws in thetestimony of Contestant's witnesses. Both claim to have heard theword "testamento" for the first time when Yap used it; and theyclaimed ability to recall that word four years later, despite the factthat the term meant nothing to either. It is well known that what isto be remembered must first be rationally conceived andassimilated (II Moore on Facts, p. 884).

2.At any rate, as observed by the Court below, whether ornot the notary signed the certification of acknowledgmentin the presence of the testatrix and the witnesses, doesnot affect the validity of the codicil. Unlike the Code of 1889(Art. 699), the new Civil Code does not require that thesigning of the testator, witnesses and notary should beaccomplished in one single act. A comparison of Articles 805and 806 of the new Civil Code reveals that while testator andwitnesses sign in the presence of each other, all that isthereafter required is that "every will must beacknowledged before a notary public by the testator andthe witnesses" (Art. 806); i.e., that the latter should avow tothe certifying officer the authenticity of their signatures and the

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voluntariness of their actions in executing the testamentarydisposition. The subsequent signing and sealing by thenotary of his certification that the testament was dulyacknowledged by the participants therein is no part of theacknowledgment itself nor of the testamentary act. Hencetheir separate execution out of the presence of the testatrix andher witnesses cannot be said to violate the rule that testaments

should be completed without interruption. It is noteworthy thatArticle 806 of the new Civil Code does not contain wordsrequiring that the testator and the witnesses shouldacknowledge the testament on the same day or occasionthat it was executed.

CANEDA VS CA 222 SCRA 781

The records show that on December 5, 1978, Mateo Caballero, a widowerwithout any children and already in the twilight years of his life, executed alast will and testament at his residence in Talisay, Cebu before threeattesting witnesses, namely, Cipriano Labuca, Gregorio Cabando andFlaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in thepreparation of that last will. 1 It was declared therein, among other things,

that the testator was leaving by way of legacies and devises his real andpersonal properties to Presentacion Gaviola, Angel Abatayo, RogelioAbatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all ofwhom do not appear to be related to the testator.

Thereafter, herein petitioners, claiming to be nephews and nieces of thetestator, instituted a second petition, entitled "In the Matter of the IntestateEstate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,before Branch IX of the aforesaid Court of First Instance of Cebu. OnOctober 18, 1982, herein petitioners had their said petition intestateproceeding consolidated with Special Proceeding No. 3899-R in Branch II ofthe Court of First Instance of Cebu and opposed thereat the probate of the

Testator's will and the appointment of a special administrator for his estate.

Undaunted by the said judgment of the probate court, petitioners elevated

the case in the Court of Appeals in CA-G.R. CV No. 19669. They assertedtherein that the will in question is null and void for the reason that itsattestation clause is fatally defective since it fails to specifically state thatthe instrumental witnesses to the will witnessed the testator signing the willin their presence and that they also signed the will and all the pagesthereof in the presence of the testator and of one another.

An attestation clause refers to that part of an ordinary willwhereby the attesting witnesses certify that the instrument hasbeen executed before them and to the manner of the execution thesame. It is a separate memorandum or record of the facts surrounding theconduct of execution and once signed by the witnesses, it givesaffirmation to the fact that compliance with the essential

formalities required by law has been observed. It is made for thepurpose of preserving in a permanent form a record of the facts thatattended the execution of a particular will, so that in case of failure of thememory of the attesting witnesses, or other casualty, such facts may stillbe proved.

Under the third paragraph of Article 805, such a clause, the complete lack

of which would result in the invalidity of the will, should state (1) thenumber of the pages used upon which the will is written; (2) thatthe testator signed, or expressly caused another to sign, the willand every page thereof in the presence of the attesting witnesses;and (3) that the attesting witnesses witnessed the signing by thetestator of the will and all its pages, and that said witnesses alsosigned the will and every page thereof in the presence of thetestator and of one another.

The attestation in the will of testator states:

We, the undersigned attesting Witnesses, whose Residences and postaladdresses appear on the Opposite of our respective names, we do herebycertify that the Testament was read by him and the testator, MATEOCABALLERO; has published unto us the foregoing Will consisting of THREE

PAGES, including the Acknowledgment, each page numbered correlativelyin the letters on the upper part of each page, as his Last Will and

Testament and he has the same and every page thereof, on thespaces provided for his signature and on the left hand margin, inthe presence of the said testator and in the presence of each andall of us.

What is fairly apparent upon a careful reading of the attestation clauseherein assailed is the fact that while it recites that the testator indeedsigned the will and all its pages in the presence of the three attestingwitnesses and states as well the number of pages that were used, thesame does not expressly state therein the circumstance that saidwitnesses subscribed their respective signatures to the will in thepresence of the testator and of each other.

The so-called liberal rule, the Court said in Gil vs. Murciano, "doesnot offer any puzzle or difficulty, nor does it open the door toserious consequences. The later decisions do tell us when and where tostop; they draw the dividing line with precision. They do not allowevidence aliunde to fill a void in any part of the document orsupply missing details that should appear in the will itself. Theyonly permit a probe into the will, an exploration into its confines, toascertain its meaning or to determine the existence or absence of therequisite formalities of law. This clear, sharp limitation eliminatesuncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is thatomissions which can be supplied by an examination of the will

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itself, without the need of resorting to extrinsic evidence, will notbe fatal and, correspondingly, would not obstruct the allowance toprobate of the will being assailed. However, those omissions whichcannot be supplied except by evidence aliunde would result in theinvalidation of the attestation clause and ultimately, of the will itself.

CALDE VS CA June 27, 1994

The records show that decedent left behind nine thousand pesos(P9,000.00) worth of property. She also left a Last Will and Testament,dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Bothdocuments contained the thumbmarks of decedent. They were also signedby three (3) attesting witnesses each, and acknowledged before Tomas A.

Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt.Province.

Nicasio Calde, the executor named in the will, filed a Petition for itsallowance before the RTC of Bontoc, Mt. Province, Br. 36. He died duringthe pendency of the proceedings, and was duly substituted by petitioner.Private respondents, relatives of decedent, opposed the Petitioner filed byCalde, on the following grounds: that the will and codicil were writtenin Ilocano, a dialect that decedent did not know; that decedent was

mentally incapacitated to execute the two documents because ofher advanced age, illness and deafness; that decedentsthumbmarks were procured through fraud and undue influence;and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approvingand allowing decedents will and its codicil. The decision was appealed toand reversed by the respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article805 of the New Civil Code but for one crucial factor of discrepancyin the color of ink when the instrumental witnesses affixed theirrespective signatures.

The question in the case at bench is one of fact: whether or not, based on

the evidence submitted, respondent appellate court erred in concludingthat both decedents Last Will and Testament, and its Codicil weresubscribed by the instrumental witnesses on separate occasions. As ageneral rule, factual findings of the Court of Appeals are considered finaland conclusive, and cannot be reviewed on appeal to this court. In thepresent instance, however, there is reason to make an exception to thatrule, since the finding of the respondent court is contrary to that of the trialcourt.

In the case at bench, the autoptic preference (From the point ofview of the litigant party furnishing this source of belief, it may betermed Autoptic Proference) contradicts the testimonial evidenceproduced by petitioner. The will and its codicil, upon inspection by the

respondent court, show in black and white or more accurately, in blackand blue that more than one pen was used by the signatories thereto.

Thus, it was not erroneous nor baseless for respondent court to disbelievepetitioners claim that both testamentary documents in question weresubscribed to in accordance with the provisions of Art. 805 of the CivilCode.

Neither did respondent court err when it did not accord greatweight to the testimony of Judge Tomas A. Tolete. It is true that histestimony contains a narration of how the two testamentary documentswere subscribed and attested to, starting from decedents thumbmarkingthereof, to the alleged signing of the instrumental witnesses thereto inconsecutive order. Nonetheless, nowhere in Judge Toletes testimonyis there any kind of explanation for the different-coloredsignatures on the testaments.

c. Special requirements

Art. 807. If the testator be deaf, or a deaf-mute, he mustpersonally read the will, if able to do so; otherwise, heshall designate two persons to read it andcommunicate to him, in some practicable manner,

the contents thereof. (n)

Art. 808. If the testator is blind, the will shall be read to himtwice; once, by one of the subscribing witnesses, andagain, by the notary public before whom the will isacknowledged. (n)

GARCIA VS VASQUEZ 32 SCRA 489

Facts:

Two wills were executed, one during 1956, the other on 1960. Testatrix wassuffering from glaucoma when the subsequent 1960 will, consisting only ofone page to which the provisions were crammed, was executed. Oppositorsto the will alleged that the will was secured through fraud or undueinfluence as when the testatrix condition may be considered as similar tothat of a blind man. Likewise, they seek to oust the special administratrixfor having conflict of interest for having previously bought the property ofthe testatrix for only 30k when it was more that 300k in value.

Court held:

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Testators condition is similar to that of a blind man thus under Art. 808,the provisions of the will shouldve been read to her twice.

That the special administratrix is removed in so far as with respect to herinterest in the testamentary succession but doesnt invalidate the previoussale of property between her and the testatrix.

d. Substantial compliance

Art. 809. In the absence of bad faith, forgery, or fraud, orundue and improper pressure and influence, defectsand imperfections in the form of attestation or in thelanguage used therein shall not render the will invalidif it is proved that the will was in fact executed andattested in substantial compliance with all therequirements of Article 805. (n)

GIL VS MURCIANO 88 PHIL 260

The Court of First Instance of Manila admitted to probate the alleged willand testament of the deceased Carlos Gil. The oppositorPilar Gil Vda. de Murciano appealed to this Court, raising

only question of law. Her counsel assigns the twofollowing alleged errors:

Primer Error. El Juzgado inferior erro al dejar de declarar que el alegadotestamento de Carlos Gil no ha sido otogar de acuerdocon la ley.

Segundo Error. Erro finalmente a legalizar el referido testamento. (HIJODE PUTA!!! DO I SPEAK SPANISH?! NO ME HABLEESPAOL ESE!!!)

It will be noted that the attestation clause above quoted does notstate that the alleged testor signed the will. It declares only that itwas signed by the witnesses. This is a fatal defect, for the precisepurpose of the attestation clause is to certify that the testator

signed the will, this being the most essential element of theclause. Without it there is no attestation at all. It is said that the court maycorrect a mere clerical error. This is too much of a clerical error for it affectsthe very essence of the clause. Alleged errors may be overlooked or correctonly in matters of form which do not affect the substance of the statement.

It is claimed that the correction may be made by inference. If we cure adeficiency by means of inferences, when are we going to stop makinginferences to supply fatal deficiencies in wills? Where are we to draw theline? Following that procedure we would be making interpolations byinferences, implication, and even by internal circumtantial evidence. Thiswould be done in the face of the clear, uniquivocal, language of the statuteas to how the attestation clause should be made. It is to be supposed that

the drafter of the alleged will read the clear words of the statute when heprepared it. For the court to supply alleged deficiencies would be againstthe evident policy of the law. Section 618 of Act No. 190, before it wasamended, contained the following provision:

. . . But the absence of such form of attestation shall not render the willinvalid if it proven that the will was in fact signed and attested as in this

section provided.

However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916,besides increasing the contents of the attestation clause, entirelysuppressed the above-quoted provision. This would show that the purposeof the amending act was to surround the execution of a will with greaterguarantees and solemnities. Could we, in view of this, hold that the courtcan cure alleged deficiencies by inferences, implications, and internalcircumstantial evidence? Even in ordinary cases the law requires certainrequisities for the conclusiveness of circumstantial evidence.

It is said that the rules of statutory construction are applicable todocuments and wills. This is true, but said rules apply to the bodyof the will, containing the testamentary provisions, but not to theattestation clause, which must be so clear that it should not

require any construction.

In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had thefollowing to say:

4. ID.; ID.; ID.; ID. An attestation clause which does not recite that thewitnesses signed the will and each and every page thereof on the leftmargin in the presence of the testator is defective, and such a defectannuls the will. (Sano vs. Quintana, supra.)

The Supreme Court fully affirmed the decision, laying down the followingdoctrine:

1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. Theattestation clause must be made in strict conformity with the

requirements of section 618 of Act No. 190, as amended. Wheresaid clause fails to show on its face a full compliance with thoserequirements, the defect constitutes sufficient ground for thedisallowance of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs.Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted toestablish facts not appearing on the attestation clause, and wheresaid evidence has been admitted it should not be given the effect intended.(Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).

2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, ASAMENDED. Section 618 of Act No. 190, as amended, should be given astrict interpretation in order to give effect to the intention of theLegislature. Statutes prescribing formalities to be observed in the

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execution of wills are very strictly construed. Courts cannot supplythe defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs. NavasL. Sioca, supra.)

CUEVAS VS ACHACOSO 88 PHIL 730

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In

said will the deceased instituted as his heirs, Valentina Cuevas, his widowand Rosario Asera Venzon, his daughter. He named therein his widow asexecutrix of the will. On February 1, 1946, Valentina Cuevas filed a petitionfor the probate of said will.

On May 10, 1946, one Pilar Achacoso filed an alternative petition for theprobate of a previous will executed by the deceased praying therein that, ifthe will submitted by the widow be rejected, the other will be admitted toprobate in lieu thereof. In the previous will there are other heirs instituted,among them petitioner Pilar Achacoso. Pilar Achacoso objected to theprobate of the second will executed by the deceased on October 10, 1945.After due hearing, the court found that the latter will was executed inaccordance with law and ordered that it be admitted to probate. PilarAchacoso took the case to the Court of Appeals, but the latter certified it tothis Court on the ground that it involves purely questions of law.

The main error assigned refers to the alleged lack of attestationclause in the will under consideration, or to the fact that, if thereis such attestation clause, the same has not been signed by theinstrumental witnesses, but by the testator himself, and it isclaimed that this defect has the effect of invalidating the will.

The will in question, after reciting in separate paragraphs, and undercorrelative numbers, the provisions of the will, winds up with the followingclause:

IN WITNESS WHEREOF, I sign this testament or last will in the municipalityof Iba, Zambales, Philippines, this 10th day of October, 1945, in the

presence of the three witnesses, namely Dr. Nestorio Trinidad, DonBaldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses to

my signing; this testament is written in three (3) sheets marked by letter"A", "B" and "C" consecutively on top of each sheet and upon my requestand in my presence and also in the presence of each of the aforesaidinstrumental witnesses, they also signed this testament already reffered to.

I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well as the testament itself have been signed by me asalso each of the witnesses has also signed in my presence and in the

presence of each other.

(Sgd.) JOSE VENZON

Witnesses:

(Sgd.) NESTORIO TRINIDAD(Sgd.) BALDOMERO L. ACHACOSO(Sgd.) PROCESO CABAL.

The clause above quoted is the attestation clause reffered to in

the law which, in our opinion, substantially complies with itsrequirements. The only apparent anomaly we find is that it appears to bean attestation made by the testator himself more than by the instrumentalwitnesses. This apparent anomaly, as to affect the validity of the will, itappearing that right under the signature of the testator, there appear thesignatures of the three instrumental witnesses.

"Instrumental witness, as define by Escriche in his Diccionario Razonado deLegislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in theexecution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807,809). An instrumental witness, therefore, does not merely attest to thesignature of the testator but also to the proper execution of the will. Thefact that the three instrumental witnesses have signed the willimmediately under the signature of the testator, shows that theyhave in fact attested not only to the genuineness of his signature

but also to the due execution of the will as embodied in theattestation clause.As was said in one case, "the object of the solemnities surroundingthe execution of the wills is to close the door against bad faith andfraud, to avoid substitution of wills and testaments and toguarantee their truth and authenticity. Therefore the laws on thissubject should be intrepreted in such a way as to attain this premordialends. But on the other hand, also one must not lose sight of the fact that itis not the object of the law to restrain and curtail the exercise of the rightto make a will. So when an interpretation already given assures suchends, any other interpretation whatsoever, that adds nothing butdemands more requisites entirely unnecessary, useless andfrustrative of the testator's will, must be disregarded."

e. Witnesses to wills

1. Who are competent

Art. 820. Any person ofsound mind and of the age of eighteenyears or more, and not blind, deaf or dumb, and ableto read and write, may be a witness to the execution ofa will mentioned in Article 805 of this Code. (n)

Art. 821. The following are disqualified from being witnesses to awill:

1. Any person not domiciled in the Philippines;

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2. Those who have been convicted of falsification ofa document, perjury or false testimony. (n)

GONZALES VS CA 90 SCRA 183

There is no dispute in the records that the late Isabel Andres Gabriel diedas a widow and without issue in the municipality of Navotas, province ofRizal her place of residence, on June 7, 1961 at the age of eighty-five (85),having been born in 1876. It is likewise not controverted that herein privaterespondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales arenieces of the deceased, and that private respondent, with her husband andchildren, lived with the deceased at the latters residence prior an- d up tothe time of her death.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document,Exhibit "F" was executed and attested as required by law when there wasabsolutely no proof that the three instrumental witnesses were crediblewitness

In fine, We state the rule that the instrumental witnesses in Order tobe competent must be shown to have the qualifications underArticle 820 of the Civil Code and none of the disqualificationsunder Article 821 and for their testimony to be credible, that isworthy of belief and entitled to credence, it is not mandatory thatevidence be first established on record that the witnesses have agood standing in the community or that they are honest andupright or reputed to be trustworthy and reliable, for a person ispresumed to be such unless the contrary is established otherwise.In other words, the instrumental witnesses must be competent and theirtestimonies must be credible before the court allows the probate of the willthey have attested.CRUZ VS VILLASOR 54 SCRA 31

To allow the notary public to act as third witness, or one of theattesting and acknowledging witnesses, would have the effect ofhaving only two attesting witnesses to the will which would be incontravention of the provisions of Article 80 be requiring at least threecredible witnesses to act as such and of Article 806 which requires that thetestator and the required number of witnesses must appear before thenotary public to acknowledge the will. The result would be, as has beensaid, that only two witnesses appeared before the notary public for or thatpurpose. In the circumstances, the law would not be duly in observed.

f. Holographic wills

1. In general

Art. 804. Every will must be in writing and executed in a languageor dialect known to the testator. (n)

2. Specific requirements

Art. 810. A person may execute a holographic will which mustbe entirely written, dated, and signed by the handof the testator himself. It is subject to no other form,and may be made in or out of the Philippines, andneed not be witnessed. (678, 688a)

Art. 812. In holographic wills, the dispositions of the testatorwritten below his signature must be dated andsigned by him in order to make them valid astestamentary dispositions. (n)

Art. 813. When a number of dispositions appearing in aholographic will are signed without being dated,and the last disposition has a signature and a date,such date validates the dispositions preceding it,

whatever be the time of prior dispositions. (n)

Art. 814. In case of any insertion, cancellation, erasure or alterationin a holographic will, the testator must authenticatethe same by his full signature. (n)

ROXAS VS DE JESUS 134 SCRA 245

Petitioner Simeon R. Roxas testified that after his appointment asadministrator, he found a notebook belonging to the deceasedBibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, aletter-win addressed to her children and entirely written andsigned in the handwriting of the deceased Bibiana R. de Jesus wasfound. The will is dated "FEB./61 " and states: "This is my winwhich I want to be respected although it is not written by a lawyer.

...

The testimony of Simeon R. Roxas was corroborated by thetestimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesuswho likewise testified that the letter dated "FEB./61 " is theholographic Will of their deceased mother, Bibiana R. de Jesus.Both recognized the handwriting of their mother and positivelyIdentified her signature. They further testified that their deceasedmother understood English, the language in which the holographic Will iswritten, and that the date "FEB./61 " was the date when said Will wasexecuted by their mother.

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Respondent Luz R. Henson, another compulsory heir filed an"opposition to probate" assailing the purported holographic Will ofBibiana R. de Jesus because a it was not executed in accordance withlaw, (b) it was executed through force, intimidation and/or underduress, undue influence and improper pressure, and (c) thealleged testatrix acted by mistake and/or did not intend, nor couldhave intended the said Will to be her last Will and testament at the

time of its execution.

The only issue is whether or not the date "FEB./61 " appearing on theholographic Will of the deceased Bibiana Roxas de Jesus is a validcompliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which must beentirely written, dated, and signed by the hand of thetestator himself. It is subject to no other form, and maybe made in or out of the Philippines, and need not bewitnessed.

Respondent Luz Henson on the other hand submits that the purportedholographic Will is void for non-compliance with Article 810 of the New CivilCode in that the date must contain the year, month, and day of its

execution.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literalapplication of the statutory requirements regarding the due execution ofWills. We should not overlook the liberal trend of the Civil Code in themanner of execution of Wills, the purpose of which, in case of doubt is toprevent intestacy

The underlying and fundamental objectives permeating the provisions ofthe law on wigs in this Project consists in the liberalization of the manner oftheir execution with the end in view of giving the testator more freedom inexpressing his last wishes, but with sufficien safeguards and restrictions toprevent the commission of fraud and the exercise of undue and improper

pressure and influence upon the testator.

As a general rule, the "date" in a holographic Will should includethe day, month, and year of its execution. However, when as in thecase at bar, there is no appearance of fraud, bad faith, undueinfluence and pressure and the authenticity of the Will isestablished and the only issue is whether or not the date "FEB./61"appearing on the holographic Will is a valid compliance with Article 810 ofthe Civil Code, probate of the holographic Will should be allowed under theprinciple of substantial compliance.

KALAW VS RELOVA 132 SCRA 237

On September 1, 1971, private respondent GREGORIO K. KALAW, claimingto be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petitionbefore the Court of First Instance of Batangas, Branch VI, Lipa City, for theprobate of her holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of LipaCity, being of sound and disposing mind and memory, do hereby declarethus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church ofLipa City. In accordance with the rights of said Church, and that myexecutrix hereinafter named provide and erect at the expose of my state asuitable monument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of thetestatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.Kalaw opposed probate alleging, in substance, that the holographic Willcontained alterations, corrections, and insertions without the properauthentication by the full signature of the testatrix as required by Article814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in aholographic will the testator must authenticate the same by his fullsignature.

ROSA's position was that the holographic Will, as first written, should begiven effect and probated so that she could be the sole heir thereunder.

Ordinarily, when a number of erasures, corrections, and interlineations

made by the testator in a holographic Will litem not been noted under hissignature, ... the Will is not thereby invalidated as a whole, but at most onlyas respects the particular words erased, corrected or interlined.1 Manresagave an Identical commentary when he said "la omision de la salvedad noanula el testamento, segun la regla de jurisprudencia establecida en lasentencia de 4 de Abril de 1895."

59065110 Succession Reviewer

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