8. ACKNOWLEDGED BEFORE A NOTARY PUBLIC

G.R. No. L-32213 November 26, 1973AGAPITA 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 oncertiorarithe judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See alsoTrenwith 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 asacknowledgingwitnesses. 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 beacknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.Cost against the appellee.Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.

G.R. No. L-7179 June 30, 1955Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA,petitioner-appellee,vs.DOA MATEA LEDESMA,oppositor-appellant.Fulgencio Vega and Felix D. Bacabac for appellant.Benjamin H. Tirot for appellee.REYES, J.B.L.,J.:By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos.Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers.Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the deceased.Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament (likelegado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests.The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses signin the presence of each other,all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption (Andalisvs.Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it,"uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.The decision admitting the will to probate is affirmed, with costs against appellant.Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ.,concur.URSULINA GANUELAS, METODIO GANUELAS andANTONIO GANUELAS,vs.HON. ROBERT T. CAWED, Judge of the Regional Trial Court of San Fernando, LaUnion (Branch 29), LEOCADIA G. FLORES, FELICITACION G. AGTARAP, CORAZON G. SIPALAY and ESTATE OF ROMANA GANUELAS DE LAROSA, represented by GREGORIO DELA ROSA, Administrator,respondent.D E C I S I O NCARPIO-MORALES,J.:The present petition for review under Rule 45 of the Rules of Court assails, on a question of law, the February 22, 1996 decision[1]of the Regional Trial Court of San Fernando, La Union, Branch 29, in Civil Case No. 3947, an action for declaration of nullity of a deed of donation.The facts, as culled from the records of the case, are as follows:On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a Deed of Donation of Real Property[2]covering seven parcels of land in favor of her niece Ursulina Ganuelas (Ursulina), one of herein petitioners.The pertinent provision of the deed of donation reads, quotedverbatim:x x xThat, for and in consideration of the love and affection which the DONOR has for the DONEE, and of the faithful services the latter has rendered in the past to the former, the said DONOR does by these presents transfer and convey, by way of DONATION, unto the DONEE the property above, described, to become effective upon the death of the DONOR; but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and of no further force and effect.x x x.[3]On June 10, 1967, Celestina executed a document denominated as Revocation of Donation[4]purporting to set aside the deed of donation.More than a month later or on August 18, 1967, Celestina died without issue and any surviving ascendants and siblings.After Celestinas death, Ursulina had been sharing the produce of the donated properties with private respondents Leocadia G. Flores, et al., nieces of Celestina.In 1982, or twenty-four years after the execution of the Deed of Donation, Ursulina secured the corresponding tax declarations, in her name, over the donated properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111, 18112, 18113 and 18114, and since then, she refused to give private respondents any share in the produce of the properties despite repeated demands.Private respondents were thus prompted to file on May 26, 1986 with the RTC of San Fernando, La Union a complaint[5]against Ursulina, along with Metodio Ganuelas and Antonio Ganuelas who were alleged to be unwilling plaintiffs.The complaint alleged that the Deed of Donation executed by Celestina in favor of Ursulina was void for lack of acknowledgment by the attesting witnesses thereto before notary public Atty. Henry Valmonte, and the donation was a dispositionmortis causawhich failed to comply with the provisions of the Civil Code regarding formalities of wills and testaments, hence, it was void.The plaintiffs-herein private respondents thus prayed that judgment be rendered ordering Ursulina to return to them as intestate heirs the possession and ownership of the properties.They likewise prayed for the cancellation of the tax declarations secured in the name of Ursulina, the partition of the properties among the intestate heirs of Celestina, and the rendering by Ursulina of an accounting of all the fruits of the properties since 1982 and for her to return or pay the value of their shares.The defendants-herein petitioners alleged in their Answer[6]that the donation in favor of Ursulina wasinter vivosas contemplated under Article 729 of the Civil Code,[7]hence, the deed did not have to comply with the requirements for the execution of a valid will; the Revocation of Donation is null and void as the ground mentioned therein is not among those provided by law to be the basis thereof; and at any rate, the revocation could only be legally enforced upon filing of the appropriate complaint in court within the prescriptive period provided by law, which period had, at the time the complaint was filed, already lapsed.By Decision of February 22, 1996, the trial court, holding that the provision in the Deed of Donation that in the event that the DONEE should predecease the DONOR, the donation shall be deemed rescinded and of no further force and effect is an explicit indication that the deed is a donationmortis causa,[8]found for the plaintiffs-herein private respondents, thus:WHEREFORE the Court renders judgment declaring null and void the Deed of Donation of Real Property executed by Celestina Ganuelas, and orders the partition of the estate of Celestina among the intestate heirs.SO ORDERED.[9]The trial court also held that the absence of a reservation clause in the deed implied that Celestina retained complete dominion over her properties, thus supporting the conclusion that the donation ismortis causa,[10]and that while the deed contained an attestation clause and an acknowledgment showing the intent of the donor to effect a postmortem disposition, the acknowledgment was defective as only the donor and donee appear to have acknowledged the deed before the notary public, thereby rendering the entire document void.[11]Lastly, the trial court held that the subsequent execution by Celestina of the Revocation of Donation showed that the donor intended the revocability of the donationad nutum, thus sustaining its finding that the conveyance wasmortis causa.[12]On herein petitioners argument that the Revocation of Donation was void as the ground mentioned therein is not one of those allowed by law to be a basis for revocation, the trial court held that the legal grounds for such revocation as provided under the Civil Code arise only in cases of donationsinter vivos,but not in donationsmortis causawhich are revocable at will during the lifetime of the donor. The trial court held, in any event, that given the nullity of the dispositionmortis causain view of a failure to comply with the formalities required therefor, the Deed of Revocation was a superfluity.[13]Hence, the instant petition for review, petitioners contending that the trial court erred:I.. . . WHEN IT DECLARED NULL AND VOID THE DONATION EXECUTED BY CELESTINA GANUELAS;II.. . . WHEN IT UPHELD THE REVOCATION OF DONATION;III.. . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER URSULINA GANUELAS.[14]Petitioners argue that the donation contained in the deed isinter vivosas the main consideration for its execution was the donors affection for the donee rather than the donors death;[15]that the provision on the effectivity of the donationafter the donors deathsimply meant that absolute ownership would pertain to the donee on the donors death;[16]and that since the donation isinter vivos, it may be revoked only for the reasons provided in Articles 760,[17]764[18]and 765[19]of the Civil Code.In a letter of March 16, 1998,[20]private respondent Corazon Sipalay, reacting to this Courts January 28, 1998 Resolution requiring private respondents to SHOW CAUSE why they should not be disciplinarily dealt with or held in contempt for failure to submit the name and address of their new counsel, explains that they are no longer interested in pursuing the case and are willing and ready to waive whatever rights they have over the properties subject of the donation.Petitioners, who were required to comment on the letter, by Comment of October 28, 1998,[21]welcome private respondents gesture but pray that for the sake of enriching jurisprudence, their [p]etition be given due course and resolved.The issue is thus whether the donation isinter vivosormortis causa.Crucial in the resolution of the issue is the determination of whether the donor intended to transfer the ownership over the properties upon the execution of the deed.[22]Donationinter vivosdiffers from donationmortis causain that in the former, the act is immediately operative even if the actual execution may be deferred until the death of the donor, while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-testator.[23]The following ruling of this Court inAlejandro v. Geraldezis illuminating:[24]If the donation is made in contemplation of the donors death, meaning that the full or naked ownership of the donated properties will pass to the donee only because of the donors death, then it is at that time that the donation takes effect, and it is a donationmortis causawhich should be embodied in a last will and testament.But if the donation takes effect during the donors lifetime or independently of the donors death, meaning that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donors lifetime, not by reason of his death but because of the deed of donation, then the donation isinter vivos.The distinction between a transferinter vivosandmortis causais important as the validity or revocation of the donation depends upon its nature.If the donation isinter vivos, it must be executed and accepted with the formalities prescribed by Articles 748[25]and 749[26]of the Civil Code, except when it is onerous in which case the rules on contracts will apply.If it ismortis causa,the donation must be in the form of a will, with all the formalities for the validity of wills, otherwise it is void and cannot transfer ownership.[27]The distinguishing characteristics of a donationmortis causaare the following:1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;3.That the transfer should be void if the transferor should survive the transferee.[28]In the donation subject of the present case, there is nothing therein which indicates that any right, title or interest in the donated properties was to be transferred to Ursulina prior to the death of Celestina.The phrase to become effective upon the death of the DONOR admits of no other interpretation but that Celestina intended to transfer the ownership of the properties to Ursulina on her death, not during her lifetime.[29]More importantly, the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no further force and effect shows that the donation is a postmortem disposition.As stated in a long line of cases, one of the decisive characteristics of a donationmortis causais that the transfer should be considered void if the donor should survive the donee.[30]More. The deed contains an attestation clause expressly confirming the donation asmortis causa:SIGNED by the above-named donor, Celestina Ganuelas, at the foot ofthis deed of donation mortis causa, consisting of two (2) pages and on the left margin of each and every page thereof in the joint presence of all of us who at her request and in her presence and that of each other have in like manner subscribed our names as witnesses.[31](Emphasis supplied)To classify the donation asinter vivossimply because it is founded on considerations of love and affection is erroneous.That the donation was prompted by the affection of the donor for the donee and the services rendered by the latter is of no particular significance in determining whether the deed constitutes a transferinter vivosor not, because a legacy may have an identical motivation.[32]In other words, love and affection may also underline transfersmortis causa.[33]InMaglasang v. Heirs of Cabatingan,[34]the deeds of donation contained provisions almost identical to those found in the deed subject of the present case:That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon,to become effective upon the death of the DONOR; PROVIDED, HOWEVER,that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect.(Underscoring supplied)In that case, this Court held that the donations weremortis causa, for the above-quoted provision conclusively establishes the donors intention to transfer the ownership and possession of the donated property to the donee only after the formers death.Like in the present case, the deeds therein did not contain any clear provision that purports to pass proprietary rights to the donee prior to the donors death.As the subject deed then is in the nature of amortis causadisposition, the formalities of a will under Article 728 of the Civil Code should have been complied with, failing which the donation is void and produces no effect.[35]As noted by the trial court,the attesting witnesses failed to acknowledge the deed before the notary public, thus violatingArticle 806 of the Civil Code which provides:Art. 806.Every will must be acknowledged before a notary public by the testatorand the witnesses.The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (Emphasis supplied)The trial court did not thus commit any reversible error in declaring the Deed of Donation to bemortis causa.WHEREFORE, the petition is hereby DENIED for lack of merit.SO ORDERED.G.R. No. 192916 October 11, 2010MANUEL A. ECHAVEZ,Petitioner,vs.DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE REGISTER OF DEEDS OF CEBU CITY,Respondents.R E S O L U T I O NBRION,J.:Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which includes Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985, Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa.1Manuel accepted the donation.In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen Construction and Development Corporation (Dozen Corporation). In October 1986, they executed two Deeds of Absolute Sale over the same properties covered by the previous Contract to Sell.On November 6, 1986, Vicente died. Emiliano Cabanig, Vicentes nephew, filed a petition for the settlement of Vicentes intestate estate. On the other hand, Manuel filed a petition to approve Vicentes donation mortis causa in his favor and an action to annul the contracts of sale Vicente executed in favor of Dozen Corporation. These cases were jointly heard.The Regional Trial Court (RTC) dismissed Manuels petition to approve the donation and his action for annulment of the contracts of sale.2The RTC found that the execution of a Contract to Sell in favor of Dozen Corporation, after Vicente had donated the lots to Manuel, was an equivocal act that revoked the donation. The Court of Appeals (CA) affirmed the RTCs decision.3The CA held that since the donation in favor of Manuel was a donation mortis causa, compliance with the formalities for the validity of wills should have been observed. The CA found that the deed of donation did not contain an attestation clause and was therefore void.The Petition for Review on CertiorariManuel claims that the CA should have applied the rule on substantial compliance in the construction of a will to Vicentes donation mortis causa. He insists that the strict construction of a will was not warranted in the absence of any indication of bad faith, fraud, or substitution in the execution of the Deed of Donation Mortis Causa. He argues that the CA ignored the Acknowledgment portion of the deed of donation, which contains the "import and purpose" of the attestation clause required in the execution of wills. The Acknowledgment reads:BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu, personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on April 10, 1985 at [sic] Talisay, Cebu known to me to be the same person who executed the foregoing instrument of Deed of Donartion Mortis Causabefore the Notary Public and in the presence of the foregoing three (3) witnesses who signed this instrument before and in the presence of each other and of the Notary Publicand all of them acknowledge to me that the same is their voluntary act and deed. [Emphasis in the original.]THE COURTS RULINGThe CA correctly declared that a donation mortis causa must comply with the formalities prescribed by law for the validity of wills,4"otherwise, the donation is void and would produce no effect."5Articles 805 and 806 of the Civil Code should have been applied.As the CA correctly found, the purported attestation clause embodied in the Acknowledgment portion does not contain the number of pages on which the deed was written.lavvphilThe exception to this rule in Singson v. Florentino6and Taboada v. Hon. Rosal,7cannot be applied to the present case, as the facts of this case are not similar with those of Singson and Taboada. In those cases, the Court found that although the attestation clause failed to state the number of pages upon which the will was written, the number of pages was stated in one portion of the will. This is not the factual situation in the present case.Even granting that the Acknowledgment embodies what the attestation clause requires, we are not prepared to hold that an attestation clause and an acknowledgment can be merged in one statement.That the requirements of attestation and acknowledgment are embodied in two separate provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law contemplates two distinct acts that serve different purposes. An acknowledgment is made by one executing a deed, declaring before a competent officer or court that the deed or act is his own. On the other hand, the attestation of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the instrument before them and to the manner of its execution.81avvphi1Although the witnesses in the present case acknowledged the execution of the Deed of Donation Mortis Causa before the notary public, this is not the avowal the law requires from the instrumental witnesses to the execution of a decedents will. An attestation must state all the details the third paragraph of Article 805 requires. In the absence of the required avowal by the witnesses themselves, no attestation clause can be deemed embodied in the Acknowledgement of the Deed of Donation Mortis Causa.Finding no reversible error committed by the CA, the Court hereby DENIES Manuels petition for review on certiorari.SO ORDERED.MANUEL L. LEE,A.C.No. 5281Complainant,Present:PUNO,C.J.,Chairperson,SANDOVAL-GUTIERREZ,- v e r s u s -CORONA,AZCUNA andLEONARDO-DE CASTRO,JJ.ATTY. REGINO B. TAMBAGO,Respondent.Promulgated:February 12, 2008x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xR E S O L U T I O NCORONA,J.:In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution.In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.The will was purportedly executed and acknowledged before respondent on June 30, 1965.[1]Complainant, however, pointed out that the residence certificate[2]of the testator noted in the acknowledgment of the will was dated January 5, 1962.[3]Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation[4](containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s].[5]Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits.Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the certification of the chief of the archives division dated September 19, 1999 stated:Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in thisOffice[s] files.[6]Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per affidavit[7]of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit[8]of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx.[9]Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant against him in the Office of the Ombudsman did not prosper.Respondent did not dispute complainants contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed.Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an action for the declaration of nullity of the will and demand his share in the inheritance.In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[10]In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 1[11]and Rule 1.01[12]of the Code of Professional Responsibility (CPR).[13]Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months.The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,with modification,the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondents notarial commission isRevoked and Disqualifiedfromreappointment as Notary Public for two (2) years.[14]We affirm with modification.A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.[15]A will may either be notarial or holographic.The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity.[16]A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.[17]The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void.[18]This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses.[19]The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article 805 and embodied in a distinct and separate provision.[20]An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed.[21]The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done.A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held inSantiago v. Rafanan:[22]The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification.These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents.[23]A notary public, especially a lawyer,[24]is bound to strictly observe these elementary requirements.The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument:Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.[25]The importance of such act was further reiterated by Section 6 of the Residence Tax Act[26]which stated:When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx.In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division, Article 806 provides:Art. 806. Every will must be acknowledged before a notary public by the testator and the witness.The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.(emphasis supplied)Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action.Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order:1.nature of each instrument executed, sworn to, or acknowledged before him;2.person executing, swearing to, or acknowledging the instrument;3.witnesses, if any, to the signature;4.date of execution, oath, or acknowledgment of the instrument;5.fees collected by him for his services as notary;6.give each entry a consecutive number; and7.if the instrument is a contract, a brief description of the substance of the instrument.[27]In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a certification[28]stating that the archives division had no copy of the affidavit of Bartolome Ramirez.A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent must first prove the existence and cause of the unavailability of the original,[29]otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary evidence.In the same vein, respondents attempt to controvert the certification dated September 21, 1999[30]must fail. Not only did he present a mere photocopy of the certification dated March 15, 2000;[31]its contents did not squarely prove the fact of entry of the contested will in his notarial register.Notaries public must observe with utmost care[32]and utmost fidelity the basic requirements in the performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.[33]Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm its contents.[34]Accordingly, respondent must be held accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.[35]In this connection, Section 249 of the old Notarial Law provided:Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:xxxxxxxxx(b)The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law.xxxxxxxxx(f)The failure of the notary to make the proper notation regarding cedula certificates.[36]These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court[37]and Canon 1[38]and Rule 1.01[39]of the CPR.The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.[40]For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensation of justice.[41]While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make himself an example for others to emulate.[42]Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned.[43]The practice of law is a privilege burdened with conditions.[44]A breach of these conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in professional misconduct.[45]These sanctions meted out to errant lawyers include disbarment, suspension and reprimand.Disbarment is the most severe form of disciplinary sanction.[46]Wehave held in a number of cases that the power to disbar must be exercised with great caution[47]and should not be decreed if any punishment less severe such as reprimand, suspension, or fine will accomplish the end desired.[48]The rule then is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court.[49]Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims that he exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had complied with the elementary formalities in the performance of his duties xxx, we find that he acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law.It is, as well, a sufficient basis for the revocation of his commission[50]and his perpetual disqualification to be commissioned as a notary public.[51]WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.Atty. Regino B. Tambago is herebySUSPENDEDfrom the practice of law for one year and his notarial commissionREVOKED.Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he isPERPETUALLYDISQUALIFIEDfrom reappointment as a notary public.Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the personal records of respondent.SO ORDERED.ART 808. IF TESTATOR IS BLIND

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME ROSARIO,Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA,Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME ROSARIO,Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE PRECILLA,Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN,Oppositors-Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S. Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.

Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.

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

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE; TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER WILL. The declarations in court of the opthalmologist as to the condition of the testatrixs eyesight fully establish the fact that her vision remained mainly for viewing distant objects and not for reading print; that she was, at the time of the execution of the second will on December 29, 1960, incapable of reading and could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Da. Gliceria, the typographical errors remained uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of ones worldly possessions should be embodied in an informal and untidy written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where as in the 1960 will there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the testator is blind, the will shall be read to him twice," have not been complied with, the said 1960 will suffer from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR. Considering that the alleged deed of sale was executed when Gliceria del Rosario was already practically blind and that the consideration given seems unconscionably small for the properties, there was likelihood that a case for annulment might be filed against the estate or heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. This, plus her conduct in securing new copies of the owners duplicate of titles without the courts knowledge and authority and having the contract bind the land through issuance of new titles in her husbands name, cannot but expose her to the charge of unfitness or unsuitability to discharge the trust, justifying her removal from the administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF REAL PROPERTY." On the matter of lis pendens, the provisions of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the right of possession of (such) real property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy here is simply the fitness or unfitness of said special administratrix to continue holding the trust, it does not involve or affect at all the title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

D E C I S I O N

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of interest, to appoint a new one in her stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of the deceased Gliceria A. del Rosario.

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

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her appointment as special administratrix of the latters estate, said to be valued at about P100,000.00, pending the appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five groups of persons all claiming to be relatives of Doa Gliceria within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960 was not intended by the deceased to be her true will; that the signatures of the deceased appearing in the will was procured through undue and improper pressure and influence the part of the beneficiaries and/or other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the formalities required by law for such execution have not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter possesses interest adverse to the estate. After the parties were duly heard, the probate court, in its order of 2 October 1965, granted petitioners prayer and appointed her special administratrix of the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was managing the properties belonging to the estate even during the lifetime of the deceased, and to appoint another person as administrator or co administrator at that stage of the proceeding would only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965. The court denied this motion on 22 October 1965 for being premature, it being unaware that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special administratrix. It was their claim that the special administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and the improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the duty of the administrator to protect and conserve the properties of the estate, and it may become necessary that, an action for the annulment of the deed of sale land for recovery of the aforementioned parcels of land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the Special Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for the issuance of new copies of the owners duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly needed by her "in the preparation of the inventory" of the properties constituting the estate. The motion having been granted, new copies of the owners duplicates of certificates appearing the name of Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965, according to the oppositors, the same special administratrix presented to the Register of Deeds the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the probate court took note that no evidence had been presented to establish that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an earlier will did not, prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page does not render the latter invalid; that, the erasures and alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that petitioner had already shown capacity to administer the properties of the estate and that from the provisions of the will she stands as the person most concerned and interested therein, appointed said petitioner regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors motion of 14 December 1965 for the removal of the then special administratrix, as follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special administratrix and to appoint another one in her stead, is in order that an action may be filed against the special administratrix for the annulment of the deed of sale executed by the decedent on January 10, 1961. Under existing documents, the properties sold pursuant to the said deed of absolute sale no longer forms part of the estate. The alleged conflict of interest is accordingly not between different claimants of the same estate. If it is desired by the movants that an action be filed by them to annul the aforesaid deed absolute sale, it is not necessary that the special administratrix be removed and that another one be appointed to file such action. Such a course of action would only produce confusion and difficulties in the settlement of the estate. The movants may file the aforesaid proceedings, preferably in an independent action, to secure the nullity of the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the decedent, the same was also denied, for the reason that if the movants were referring to the old titles, they could no longer be produced, and if they meant the new duplicate copies thereof that were issued at the instance of the special administratrix, there would be no necessity therefor, because they were already cancelled and other certificates were issued in the name of Alfonso Precilla. This order precipitated the oppositors filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the Register of Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when said official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles contending that the matter of removal and appointment of the administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action, this time against the probate court and the Register of Deeds. The case was docketed and given due course in this Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to witness the execution of the last will of Doa Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will, which was already prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one another. There is also testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and deed, the notary public asked for their respective residence certificates which were handed to him by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers already written on the will, the notary public filled in the blanks in the instrument with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also testified that on that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident from the records. The will appeared to have been prepared by one who is not conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important document, 10 and who took their residence certificates from them a few days before the will was signed. 11 Precilla had met the notary public and witnesses Rosales and Lopez at the door of the residence of the old woman; he ushered them to the room at the second floor where the signing of the document took place; 12 then he fetched witness Decena from the latters haberdashery shop a few doors away and brought him to, the house the testatrix. 13 And when the will was actually executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of the probate courts ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doa Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the condition of the vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).

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

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting fingers," 17 at five feet. The cross-examination of the doctor further elicited the following responses:jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later glasses were prescribed.xxx

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed the eye which I operated she could see only forms but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good vision", the doctor had this to say:jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made on pure recollections and I recall she was using her glasses although I recall also that we have to give her medicines to improve her vision, some medicines to improve her identification some more.xxx

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doa Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge, remained uncorrected, thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of ones worldly possessions should be embodied in an informal and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so. The record is thus convincing that the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.

That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page, since the acts shown do not require vision at close range. It must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading distances. Writing or signing of ones name, when sufficiently practiced, becomes automatic, so that one need only to have a rough indication of the place where the signature is to be affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance: the signatures in the checks are written far above the printed base, lines, and the names of the payees as well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged."cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testators) other senses. 19

In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").

The oppositors petition was based allegedly on the existence in the special administratrix of an interest adverse to that of the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out that since the properties were already sold no longer form part of the estate. The conflict of interest would not be between the estate and third parties, but among the different claimants of said properties, in which case, according to the court, the participation of the special administratrix in the action for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the conveyance or sale of the properties. In short, if proper, the action for annulment would have to be undertaken on behalf of the estate by the special administratrix, affecting as it does the property or rights of the deceased. 20 For the rule is that only where there is no special proceeding for the settlement of the estate of the deceased may the legal heirs commence an action arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and separate action would have to be instituted, the matter not falling within the competence of the probate court. 22 Considering the facts then before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the owners duplicates of TCT Nos. 66201, 66202, and 66204, without the courts knowledge or authority, and on the pretext that she needed them in the preparation of the inventory of the estate, when she must have already known by then that the properties covered therein were already "conveyed" to her husband by the deceased, being the latters successor, and having the contract bind the land through issuance of new titles in her husbands name cannot but expose her to the charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors motion to require the Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on the complaint against the alleged withdrawals from the bank deposits of the deceased, because as of that time the court had not yet been apprised that such deposits exist. Furthermore, as explained by the special administratrix in her pleading of 30 October 1965, the withdrawals referred to by the oppositors could be those covered by checks issued in the name of Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which not only appears plausible but has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned merely with the correctness of the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doa Gliceria Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.

G.R. No. 74695 September 14, 1993In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO,petitioner,vs.HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO,respondents.Vicente R. Redor for petitioner.Bayani Ma. Rino for and in his own behalf.BELLOSILLO,J.:Before us is an appeal from the Decision dated 11 April 19861of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 19832of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament3with codicil4of the late Brigido Alvarado.On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them.Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.5Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.When the oppositor (petitioner) failed to substantiate the gr