Wills-1st Set of Cases

8/12/2019 Wills-1st Set of Cases

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1. Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THELATE JOSEFA VILLACORTE.CELSO ICASIANO, petitioner-appellee,vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO,oppositors-appellants.

Jose W. Diokno for petitioner-appellee.Rosendo J. Tansinin for oppositor-appellant NatividadIcasiano.Jaime R. Nuevas for oppositor-appellant EnriqueIcasiano.

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

Appeal from an order of the Court of First Instance ofManila admitting to probate the document and itsduplicate, marked as Exhibits "A" and "A-1", as the truelast will and testament of Josefa Villacorte, deceased,and appointing as executor Celso Icasiano, the personnamed therein as such.

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

The court set the proving of the alleged will forNovember 8, 1958, and caused notice thereof to bepublished for three (3) successive weeks, previous to thetime appointed, in the newspaper "Manila chronicle", andalso caused personal service of copies thereof upon theknown heirs.

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

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

On March 19, 1959, the petitioner proponentcommenced the introduction of his evidence; but onJune 1, 1959, he filed a motion for the admission of anamended and supplemental petition, alleging that thedecedent left a will executed in duplicate with all thelegal requirements, and that he was, on that date,submitting the signed duplicate (Exhibit "A-1"), which he

allegedly found only on or about May 26, 1959. On June17, 1959, oppositors Natividad Icasiano de Gomez andEnrique Icasiano filed their joint opposition to theadmission of the amended and supplemental petition,but by order of July 20, 1959, the court admitted saidpetition, and on July 30, 1959, oppositor NatividadIcasiano filed her amended opposition. Thereafter, theparties presented their respective evidence, and afterseveral hearings the court issued the order admitting thewill and its duplicate to probate. From this order, theoppositors appealed directly to this Court, the amountinvolved being over P200,000.00, on the ground that thesame is contrary to law and the evidence.

The evidence presented for the petitioner is to the effectthat Josefa Villacorte died in the City of Manila onSeptember 12, 1958; that on June 2, 1956, the lateJosefa Villacorte executed a last will and testament induplicate at the house of her daughter Mrs. FelisaIcasiano at Pedro Guevara Street, Manila, publishedbefore and attested by three instrumental witnesses,namely: attorneys Justo P. Torres, Jr. and Jose V.Natividad, and Mr. Vinicio B. Diy; that the will was

acknowledged by the testatrix and by the said threeinstrumental witnesses on the same date before attorneyJose Oyengco Ong, Notary Public in and for the City ofManila; and that the will was actually prepared byattorney Fermin Samson, who was also present duringthe execution and signing of the decedent's last will andtestament, together with former Governor Emilio Rustiaof Bulacan, Judge Ramon Icasiano and a little girl. Ofthe said three instrumental witnesses to the execution ofthe decedent's last will and testament, attorneys Torresand Natividad were in the Philippines at the time of thehearing, and both testified as to the due execution andauthenticity of the said will. So did the Notary Public

before whom the will was acknowledged by the testatrixand attesting witnesses, and also attorneys FerminSamson, who actually prepared the document. The latteralso testified upon cross examination that he preparedone original and two copies of Josefa Villacorte last willand testament at his house in Baliuag, Bulacan, but hebrought 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 wassurrendered simultaneously with the filing of the petitionand marked as Exhibit "A" consists of five pages, andwhile signed at the end and in every page, it does notcontain the signature of one of the attesting witnesses,Atty. Jose V. Natividad, on page three (3) thereof; butthe duplicate copy attached to the amended andsupplemental petition and marked as Exhibit "A-1" issigned by the testatrix and her three attesting witnessesin each and every page.

The testimony presented by the proponents of the willtends to show that the original of the will and itsduplicate were subscribed at the end and on the leftmargin of each and every page thereof by the testatrixherself and attested and subscribed by the threementioned witnesses in the testatrix's presence and in


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that of one another as witnesses (except for the missingsignature of attorney Natividad on page three (3) of theoriginal); that pages of the original and duplicate of saidwill were duly numbered; that the attestation clausethereof contains all the facts required by law to berecited therein and is signed by the aforesaid attestingwitnesses; that the will is written in the language knownto and spoken by the testatrix that the attestation clauseis in a language also known to and spoken by thewitnesses; that the will was executed on one singleoccasion in duplicate copies; and that both the originaland the duplicate copies were duly acknowledged beforeNotary Public Jose Oyengco of Manila on the same dateJune 2, 1956.

Witness Natividad who testified on his failure to signpage three (3) of the original, admits that he may havelifted two pages instead of one when he signed thesame, but affirmed that page three (3) was signed in hispresence.

Oppositors-appellants in turn introduced experttestimony to the effect that the signatures of the testatrix

in the duplicate (Exhibit "A-1") are not genuine nor werethey written or affixed on the same occasion as theoriginal, and further aver that granting that thedocuments were genuine, they were executed throughmistake and with undue influence and pressure becausethe testatrix was deceived into adopting as her last willand testament the wishes of those who will stand tobenefit from the provisions of the will, as may be inferredfrom the facts and circumstances surrounding theexecution of the will and the provisions and dispositionsthereof, whereby proponents-appellees stand to profitfrom properties held by them as attorneys-in-fact of thedeceased and not enumerated or mentioned therein,

while oppositors-appellants are enjoined not to look forother properties not mentioned in the will, and not tooppose the probate of it, on penalty of forfeiting theirshare in the portion of free disposal.

We have examined the record and are satisfied, as thetrial court was, that the testatrix signed both original andduplicate copies (Exhibits "A" and "A-1", respectively) ofthe will spontaneously, on the same in the presence ofthe three attesting witnesses, the notary public whoacknowledged the will; and Atty. Samson, who actuallyprepared the documents; that the will and its duplicatewere executed in Tagalog, a language known to andspoken by both the testator and the witnesses, and readto and by the testatrix and Atty. Fermin Samson,together before they were actually signed; that theattestation clause is also in a language known to andspoken by the testatrix and the witnesses. The opinion ofexpert for oppositors, Mr. Felipe Logan, that thesignatures of the testatrix appearing in the duplicateoriginal were not written by the same had which wrotethe signatures in the original will leaves us unconvinced,not merely because it is directly contradicted by expertMartin Ramos for the proponents, but principallybecause of the paucity of the standards used by him tosupport the conclusion that the differences between the

standard and questioned signatures are beyond thewriter's range of normal scriptural variation. The experthas, in fact, used as standards only three othersignatures of the testatrix besides those affixed to theoriginal of the testament (Exh. A); and we feel that withso few standards the expert's opinion and the signaturesin the duplicate could not be those of the testatrixbecomes extremely hazardous. This is particularly sosince the comparison charts Nos. 3 and 4 fail to showconvincingly that the are radical differences that wouldjustify the charge of forgery, taking into account theadvanced age of the testatrix, the evident variability ofher signatures, and the effect of writing fatigue, theduplicate being signed right the original. These, factorswere not discussed by the expert.

Similarly, the alleged slight variance in blueness of theink in the admitted and questioned signatures does notappear reliable, considering the standard and challengedwritings were affixed to different kinds of paper, withdifferent surfaces and reflecting power. On the whole,therefore, we do not find the testimony of the oppositor'sexpert sufficient to overcome that of the notary and the

two instrumental witnesses, Torres and Natividad (Dr.Diy being in the United States during the trial, did nottestify).

Nor do we find adequate evidence of fraud or undueinfluence. The fact that some heirs are more favoredthan others is proof of neither (see In re Butalid, 10 Phil.27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,45 Phil. 216). Diversity of apportionment is the usualreason for making a testament; otherwise, the decedentmight as well die intestate. The testamentarydispositions that the heirs should not inquire into otherproperty and that they should respect the distribution

made in the will, under penalty of forfeiture of theirshares in the free part do not suffice to prove fraud orundue influence. They appear motivated by the desire toprevent prolonged litigation which, as shown by ordinaryexperience, often results in a sizeable portion of theestate being diverted into the hands of non-heirs andspeculators. Whether these clauses are valid or not is amatter to be litigated on another occassion. It is also welto note that, as remarked by the Court of Appeals inSideco vs. Sideco, 45 Off. Gaz. 168, fraud and undueinfluence are mutually repugnant and exclude eachother; their joining as grounds for opposing probateshows absence of definite evidence against the validityof the will.

On the question of law, we hold that the inadvertentfailure of one witness to affix his signature to one pageof a testament, due to the simultaneous lifting of twopages in the course of signing, is not per se sufficient tojustify denial of probate. Impossibility of substitution ofthis page is assured not only the fact that the testatrixand two other witnesses did sign the defective page, butalso by its bearing the coincident imprint of the seal ofthe notary public before whom the testament was ratifiedby testatrix and all three witnesses. The law should notbe so strictly and literally interpreted as to penalize the


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testatrix on account of the inadvertence of a singlewitness over whose conduct she had no control, wherethe purpose of the law to guarantee the identity of thetestament and its component pages is sufficientlyattained, no intentional or deliberate deviation existed,and the evidence on record attests to the full observanceof the statutory requisites. Otherwise, as stated in Vda.de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479(decision on reconsideration) "witnesses may sabotagethe will by muddling or bungling it or the attestationclause".

That the failure of witness Natividad to sign page three(3) was entirely through pure oversight is shown by hisown testimony as well as by the duplicate copy of thewill, which bears a complete set of signatures in everypage. The text of the attestation clause and theacknowledgment before the Notary Public likewiseevidence that no one was aware of the defect at thetime.

This would not be the first time that this Court departsfrom a strict and literal application of the statutory

requirements, where the purposes of the law areotherwise satisfied. Thus, despite the literal tenor of thelaw, this Court has held that a testament, with the onlypage signed at its foot by testator and witnesses, but notin the left margin, could nevertheless be probated(Abangan vs. Abangan, 41 Phil. 476); and that despitethe requirement for the correlative lettering of the pagesof a will, the failure to make the first page either byletters or numbers is not a fatal defect (Lopez vs. Liboro,81 Phil. 429). These precedents exemplify the Court'spolicy to require satisfaction of the legal requirements inorder to guard against fraud and bid faith but withoutundue or unnecessary curtailment of the testamentary

privilege.

The appellants also argue that since the original of thewill is in existence and available, the duplicate (Exh. A-1)is not entitled to probate. Since they opposed probate oforiginal because it lacked one signature in its third page,it is easily discerned that oppositors-appellants run hereinto a dilemma; if the original is defective and invalid,then in law there is no other will but the duly signedcarbon duplicate (Exh. A-1), and the same is probatable.If the original is valid and can be probated, then theobjection to the signed duplicate need not beconsidered, being superfluous and irrelevant. At anyrate, said duplicate, Exhibit A-1, serves to prove that theomission of one signature in the third page of the originaltestament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was producedand admitted without a new publication does not affectthe jurisdiction of the probate court, already conferred bythe original publication of the petition for probate. Theamended petition did not substantially alter the one firstfiled, but merely supplemented it by disclosing theexistence of the duplicate, and no showing is made thatnew interests were involved (the contents of Exhibit Aand A-1 are admittedly identical); and appellants were

duly notified of the proposed amendment. It is nowhereproved or claimed that the amendment deprived theappellants of any substantial right, and we see no errorin admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealedfrom is affirmed, with costs against appellants.

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


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FIRST DIVISION

G.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THEPROBATE OF THE WILL OF DOROTEA PEREZ,(deceased): APOLONIO TABOADA, petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of FirstInstance of Southern Leyte, (Branch III, Maasin),respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by theCourt of First Instance of Southern Leyte, Branch III, inSpecial Proceedings No. R-1713, entitled "In the Matterof the Petition for Probate of the Will of Dorotea Perez,Deceased; Apolonio Taboada, Petitioner", which deniedthe probate of the will, the motion for reconsiderationand the motion for appointment of a specialadministrator.

In the petition for probate filed with the respondent court,the petitioner attached the alleged last will and testamentof the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first

page contains the entire testamentary dispositions and issigned at the end or bottom of the page by the testatrixalone and at the left hand margin by the three (3)instrumental witnesses. The second page whichcontains the attestation clause and the acknowledgmentis signed at the end of the attestation clause by the three(3) attesting witnesses and at the left hand margin by thetestatrix.

Since no opposition was filed after the petitioner'scompliance with the requirement of publication, the trialcourt commissioned the branch clerk of court to receivethe petitioner's evidence. Accordingly, the petitionersubmitted his evidence and presented Vicente Timkang,one of the subscribing witnesses to the will, who testifiedon its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C.Pamatian issued the questioned order denying theprobate of the will of Dorotea Perez for want of aformality in its execution. In the same order, thepetitioner was also required to submit the names of theintestate heirs with their corresponding addresses sothat they could be properly notified and could intervenein the summary settlement of the estate.

Instead of complying with the order of the trial court, thepetitioner filed a manifestation and/or motion, ex partepraying for a thirty-day period within which to deliberateon any step to be taken as a result of the disallowance ofthe will. He also asked that the ten-day period requiredby the court to submit the names of intestate heirs withtheir addresses be held in abeyance.

The petitioner filed a motion for reconsideration of theorder denying the probate of the will. However, themotion together with the previous manifestation and/ormotion could not be acted upon by the HonorableRamon C. Pamatian due to his transfer to his newstation at Pasig, Rizal. The said motions or incidentswere still pending resolution when respondent JudgeAvelino S. Rosal assumed the position of presidingjudge of the respondent court.

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

Subsequently, the new Judge denied the motion forreconsideration as well as the manifestation and/or

motion filed ex parte. In the same order of denial, themotion for the appointment of special administrator waslikewise denied because of the petitioner's failure tocomply with the order requiring him to submit the namesof' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

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

Article 805 of the Civil Code provides:

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

The testator or the person requested by him to write hisname and the instrumental witnesses of the will, shallalso sign, as aforesaid, each and every page thereof,except the last, on the left margin, and all the pagesshall be numbered correlatively in letters placed on theupper part of each page.

The attestation shall state the number of pages usedupon 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 hisexpress direction, in the presence of the instrumentalwitnesses, and that the lacier witnesses and signed thewill and the pages thereof in the presence of the testatorand of one another.


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If the attestation clause is in a language not known to thewitnesses, it shall be interpreted to the witnesses, it shallbe interpreted to them.

The respondent Judge interprets the above-quotedprovision of law to require that, for a notarial will to bevalid, it is not enough that only the testatrix signs at the"end" but an the three subscribing witnesses must alsosign at the same place or at the end, in the presence ofthe testatrix and of one another because the attestingwitnesses to a will attest not merely the will itself but alsothe signature of the testator. It is not sufficientcompliance to sign the page, where the end of the will isfound, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article805 of the Civil Code does not make it a conditionprecedent or a matter of absolute necessity for theextrinsic validity of the wig that the signatures of thesubscribing witnesses should be specifically located atthe end of the wig after the signature of the testatrix. Hecontends that it would be absurd that the legislatureintended to place so heavy an import on the space or

particular location where the signatures are to be foundas long as this space or particular location wherein thesignatures are found is consistent with good faith andthe honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the willmust be subscribed or signed at its end by the testatorhimself or by the testator's name written by anotherperson in his presence, and by his express direction,and attested and subscribed by three or more crediblewitnesses in the presence of the testator and of one

another.

It must be noted that the law uses the terms attested andsubscribed Attestation consists in witnessing thetestator's execution of the will in order to see and takenote mentally that those things are, done which thestatute requires for the execution of a will and that thesignature of the testator exists as a fact. On the otherhand, subscription is the signing of the witnesses' namesupon the same paper for the purpose of Identification ofsuch paper as the will which was executed by thetestator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned,it is our considered view that the will in this case wassubscribed in a manner which fully satisfies the purposeof Identification.

The signatures of the instrumental witnesses on the leftmargin of the first page of the will attested not only to thegenuineness of the signature of the testatrix but also thedue execution of the will as embodied in the attestationclause.

While perfection in the drafting of a will may bedesirable, unsubstantial departure from the usual forms

should be ignored, especially where the authenticity ofthe will is not assailed. (Gonzales v. Gonzales, 90 Phil.444, 449).

The law is to be liberally construed, "the underlying andfundamental objective permeating the provisions on thelaw on wills in this project consists in the liberalization ofthe manner of their execution with the end in view ofgiving the testator more freedom in expressing his lastwishes but with sufficient safeguards and restrictions toprevent the commission of fraud and the exercise ofundue and improper pressure and influence upon thetestator. This objective is in accord with the moderntendency in respect to the formalities in the execution ofa will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in hisquestioned order that were not for the defect in the placeof signatures of the witnesses, he would have found thetestimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fullymet and satisfied in the present case when the

instrumental witnesses signed at the left margin of thesole page which contains all the testamentarydispositions, especially so when the will was properlyIdentified by subscribing witness Vicente Timkang to bethe same will executed by the testatrix. There was noquestion of fraud or substitution behind the questionedorder.

We have examined the will in question and noticed thatthe attestation clause failed to state the number of pagesused in writing the will. This would have been a fataldefect were it not for the fact that, in this case, it isdiscernible from the entire wig that it is really and

actually composed of only two pages duly signed by thetestatrix and her instrumental witnesses. As earlierstated, the first page which contains the entirety of thetestamentary dispositions is signed by the testatrix at theend or at the bottom while the instrumental witnessessigned at the left margin. The other page which ismarked as "Pagina dos" comprises the attestationclause and the acknowledgment. The acknowledgmentitself states that "This Last Will and Testament consistsof two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), thisCourt made the following observations with respect tothe purpose of the requirement that the attestationclause must state the number of pages used:

The law referred to is article 618 of the Code of CivilProcedure, as amended by Act No. 2645, which requiresthat the attestation clause shall state the number ofpages or sheets upon which the win is written, whichrequirement has been held to be mandatory as aneffective safeguard against the possibility of interpolationor omission of some of the pages of the will to theprejudice of the heirs to whom the property is intended tobe bequeathed (In re will of Andrada, 42 Phil., 180; UyCoque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.


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Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;Echevarria vs. Sarmiento, 66 Phil. 611). The ratiodecidendi of these cases seems to be that theattestation clause must contain a statement of thenumber of sheets or pages composing the will and that ifthis is missing or is omitted, it will have the effect ofinvalidating the will if the deficiency cannot be supplied,not by evidence aliunde, but by a consideration orexamination of the will itself. But here the situation isdifferent. While the attestation clause does not state thenumber of sheets or pages upon which the will is written,however, the last part of the body of the will contains astatement that it is composed of eight pages, whichcircumstance in our opinion takes this case out of therigid rule of construction and places it within the realm ofsimilar cases where a broad and more liberal view hasbeen adopted to prevent the will of the testator frombeing defeated by purely technical considerations.

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

... Impossibility of substitution of this page is assured not

only (sic) the fact that the testatrix and two otherwitnesses did sign the defective page, but also by itsbearing the coincident imprint of the seal of the notarypublic before whom the testament was ratified bytestatrix and all three witnesses. The law should not beso strictly and literally interpreted as to penalize thetestatrix on account of the inadvertence of a singlewitness over whose conduct she had no control wherethe purpose of the law to guarantee the Identity of thetestament and its component pages is sufficientlyattained, no intentional or deliberate deviation existed,and the evidence on record attests to the funobservance of the statutory requisites. Otherwise, as

stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459,at 1479 (decision on reconsideration) 'witnesses maysabotage the will by muddling or bungling it or theattestation clause.

WHEREFORE, the present petition is hereby granted.The orders of the respondent court which denied theprobate of tile will, the motion for reconsideration of thedenial of probate, and the motion for appointment of aspecial administrator are set aside. The respondentcourt is ordered to allow the probate of the wig and toconduct further proceedings in accordance with thisdecision. No pronouncement on costs.

SO ORDERED.

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

Teehankee, J, is on leave.


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3.Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,vs.COURT OF APPEALS, GERALDA AIDA CASTILLOsubstituted by ERNESTO G. CASTILLO,Respondents.

D E C I S I O N

TINGA, J.:

The core of this petition is a highly defective notarial will,purportedly executed by Eugenia E. Igsolo (decedent),who died on 16 December 1982 at the age of 80. Inrefusing to give legal recognition to the due execution ofthis document, the Court is provided the opportunity to

assert a few important doctrinal rules in the execution ofnotarial wills, all self-evident in view of Articles 805 and806 of the Civil Code.

A will whose attestation clause does not contain thenumber of pages on which the will is written is fatallydefective. A will whose attestation clause is not signedby the instrumental witnesses is fatally defective. Andperhaps most importantly, a will which does not containan acknowledgment, but a mere jurat, is fatally defective.Any one of these defects is sufficient to deny probate. Anotarial will with all three defects is just aching for judicialrejection.

There is a distinct and consequential reason the CivilCode provides a comprehensive catalog of imperativesfor the proper execution of a notarial will. Full and faithfulcompliance with all the detailed requisites under Article805 of the Code leave little room for doubt as to thevalidity in the due execution of the notarial will. Article806 likewise imposes another safeguard to the validity ofnotarial wills that they be acknowledged before anotary public by the testator and the witnesses. Anotarial will executed with indifference to these two codalprovisions opens itself to nagging questions as to itslegitimacy.

The case stems from a petition for probate filed on 10April 1984 with the Regional Trial Court (RTC) of Manila.The petition filed by petitioner Felix Azuela sought toadmit to probate the notarial will of Eugenia E. Igsolo,which was notarized on 10 June 1981. Petitioner is theson of the cousin of the decedent.

The will, consisting of two (2) pages and written in thevernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 SanDiego St., Sampaloc, Manila, pitongput siyam (79) nagulang, nasa hustong pagi-isip, pag-unawa at memoriaay nag-hahayag na ito na ang aking huling habilin attestamento, at binabali wala ko lahat ang naunangginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio delNorte, La Loma sang-ayong sa kaugalian at patakaranng simbahang katoliko at ang taga-pag-ingat (Executor)ng habiling ito ay magtatayo ng bantayog upang silbingala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahatng karapatan sa aking pamangkin na si Felix Azuela, nasiyang nag-alaga sa akin sa mahabang panahon, yaongmga bahay na nakatirik sa lote numero 28, Block 24 atnakapangalan sa Pechaten Korporasyon, ganoon dinibinibigay ko ang lahat ng karapatan sa bahay nanakatirik sa inoopahan kong lote, numero 43, Block 24na pag-aari ng Pechaten Corporation. Ipinagkakaloob

kong buong buo ang lahat ng karapatan sa bahay atlupa na nasa 500 San Diego St., Lot 42, Block 24,Sampaloc, Manila kay Felix Azuela at ang pagkakaloobkong ito ay walang pasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE nasiyang nagpapatupad ng huling habiling ito atkagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynilaika 10 ng Hunyo, 1981.

(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati anghuling dahong ito, na ipinahayag sa amin ni Eugenia E.Igsolo, tagapagmana na siya niyang Huling Habilin,ngayon ika-10 ng Hunyo 1981, ay nilagdaan ngnasabing tagapagmana sa ilalim ng kasulatangnabanggit at sa kaliwang panig ng lahat at bawat dahonsa harap ng lahat at bawat sa amin, at kami namangmga saksi ay lumagda sa harap ng nasabingtagapagmana at sa harap ng lahat at bawat isa sa amin,sa ilalim ng nasabing kasulatan at sa kaliwang panig nglahat at bawat dahon ng kasulatan ito.

EUGENIA E. IGSOLOaddress: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.

QUIRINO AGRAVAaddress: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365


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testatrix to affix her signature on the left margin of thesecond page, which contains only the last portion of theattestation clause and acknowledgment is not a fataldefect.

As regards the oppositors assertion that the signatureofthe testatrix on the will is a forgery, the testimonies of thethree subscribing witnesses to the will are convincingenough to establish the genuineness of the signature ofthe testatrix and the due execution of the will.8

The Order was appealed to the Court of Appeals byErnesto Castillo, who had substituted his sincedeceased mother-in-law, Geralda Castillo. In a Decisiondated 17 August 1995, the Court of Appeals reversedthe trial court and ordered the dismissal of the petitionfor probate.9 The Court of Appeals noted that theattestation clause failed to state the number of pagesused in the will, thus rendering the will void andundeserving of probate.10

Hence, the present petition.

Petitioner argues that the requirement under Article 805of the Civil Code that "the number of pages used in anotarial will be stated in the attestation clause" is merelydirectory, rather than mandatory, and thus susceptible towhat he termed as "the substantial compliance rule."11

The solution to this case calls for the application ofArticles 805 and 806 of the Civil Code, which wereplicate in full.

Art. 805. Every will, other than a holographic will, mustbe subscribed at the end thereof by the testator himselfor by the testator's name written by some other person

in his presence, and by his express direction, andattested and subscribed by three or more crediblewitnesses in the presence of the testator and of oneanother.


The attestation shall state the number of pages usedupon 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 hisexpress 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.

If the attestation clause is in a language not known to thewitnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before anotary public by the testator and the witnesses. The

notary public shall not be required to retain a copy of thewill, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only onedefect, the failure of the attestation clause to state thenumber of pages of the will. But an examination of thewill itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clausefails to state the number of pages of the will.12 Therewas an incomplete attempt to comply with this requisite,a space having been allotted for the insertion of thenumber of pages in the attestation clause. Yet the blankwas never filled in; hence, the requisite was leftuncomplied with.

The Court of Appeals pounced on this defect inreversing the trial court, citing in the process Uy Coquev. Navas L. Sioca13 and In re: Will of Andrada.14 In UyCoque, the Court noted that among the defects of thewill in question was the failure of the attestation clause tostate the number of pages contained in the will.15 Inruling that the will could not be admitted to probate, the

Court made the following consideration which remainshighly relevant to this day: "The purpose of requiring thenumber of sheets to be stated in the attestation clause isobvious; the document might easily be so prepared thatthe removal of a sheet would completely change thetestamentary dispositions of the will and in the absenceof a statement of the total number of sheets suchremoval might be effected by taking out the sheet andchanging the numbers at the top of the following sheetsor pages. If, on the other hand, the total number ofsheets is stated in the attestation clause the falsificationof the document will involve the inserting of new pagesand the forging of the signatures of the testator and

witnesses in the margin, a matter attended with muchgreater difficulty."16

The case of In re Will of Andrada concerned a will theattestation clause of which failed to state the number ofsheets or pages used. This consideration alone wassufficient for the Court to declare "unanim[ity] upon thepoint that the defect pointed out in the attesting clause isfatal."17 It was further observed that "it cannot be deniedthat the x x x requirement affords additional securityagainst the danger that the will may be tampered with;and as the Legislature has seen fit to prescribe thisrequirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v.Florentino19 and Taboada v. Hon. Rosal,20 wherein theCourt allowed probate to the wills concerned thereindespite the fact that the attestation clause did not statethe number of pages of the will. Yet the appellate courtitself considered the import of these two cases, andmade the following distinction which petitioner is unableto rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), willreadily show that the attestation does not state the


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number of pages used upon which the will is written.Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the SupremeCourt in "Manuel Singson versus Emilia Florentino, etal., 92 Phil. 161 and Apolonio [Taboada] versus Hon.Avelino Rosal, et al., 118 SCRA 195," to the effect that awill may still be valid even if the attestation does notcontain the number of pages used upon which the Will iswritten. However, the Decisions of the Supreme Courtare not applicable in the aforementioned appeal atbench. This is so because, in the case of "ManuelSingson versus Emilia Florentino, et al., supra," althoughthe attestation in the subject Will did not state thenumber of pages used in the will, however, the samewas found in the last part of the body of the Will:

"x x x

The law referred to is article 618 of the Code of CivilProcedure, as amended by Act No. 2645, which requiresthat the attestation clause shall state the number ofpages or sheets upon which the will is written, which

requirement has been held to be mandatory as aneffective safeguard against the possibility of interpolationor omission of some of the pages of the will to theprejudice of the heirs to whom the property is intended tobe bequeathed (In re Will of Andrada, 42 Phil. 180; UyCoque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;Echevarria vs. Sarmiento, 66 Phil. 611). The ratiodecidendi of these cases seems to be that theattestation clause must contain a statement of thenumber of sheets or pages composing the will and that ifthis is missing or is omitted, it will have the effect ofinvalidating the will if the deficiency cannot be supplied,

not by evidence aliunde, but by a consideration orexamination of the will itself. But here the situation isdifferent. While the attestation clause does not state thenumber of sheets or pages upon which the will is written,however, the last part of the body of the will contains astatement that it is composed of eight pages, whichcircumstance in our opinion takes this case out of therigid rule of construction and places it within the realm ofsimilar cases where a broad and more liberal view hasbeen adopted to prevent the will of the testator frombeing defeated by purely technical considerations."(page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al."supra, the notarial acknowledgement in the Will statesthe number of pages used in the:

"x x x

We have examined the will in question and noticed thatthe attestation clause failed to state the number of pagesused in writing the will. This would have been a fataldefect were it not for the fact that, in this case, it isdiscernible from the entire will that it is really and actuallycomposed of only two pages duly signed by the testatrixand her instrumental witnesses. As earlier stated, the

first page which contains the entirety of the testamentarydispositions is signed by the testatrix at the end or at thebottom while the instrumental witnesses signed at theleft margin. The other page which is marked as "Paginados" comprises the attestation clause and theacknowledgment. The acknowledgment itself states that"this Last Will and Testament consists of two pagesincluding this page" (pages 200-201, supra)(Underscoring supplied).

However, in the appeal at bench, the number of pagesused in the will is not stated in any part of the Will. Thewill does not even contain any notarial acknowledgmentwherein the number of pages of the will should bestated.21

Both Uy Coque and Andrada were decided prior to theenactment of the Civil Code in 1950, at a time when thestatutory provision governing the formal requirement ofwills was Section

618 of the Code of Civil Procedure.22 Reliance on thesecases remains apropos, considering that the

requirement that the attestation state the number ofpages of the will is extant from Section 618.23 However,the enactment of the Civil Code in 1950 did put in force arule of interpretation of the requirements of wills, at leastinsofar as the attestation clause is concerned, that mayvary from the philosophy that governed these two cases.Article 809 of the Civil Code states: "In the absence ofbad faith, forgery, or fraud, or undue and improperpressure and influence, defects and imperfections in theform of attestation or in the language used therein shallnot render the will invalid if it is proved that the will wasin fact executed and attested in substantial compliancewith all the requirements of article 805."

In the same vein, petitioner cites the report of the CivilCode Commission, which stated that "the underlying andfundamental objective permeating the provisions on the[law] on [wills] in this project consists in the[liberalization] of the manner of their execution with theend in view of giving the testator more [freedom] in[expressing] his last wishes. This objective is in accordwith the [modern tendency] in respect to the formalitiesin the execution of wills."24 However, petitionerconveniently omits the qualification offered by the CodeCommission in the very same paragraph he cites fromtheir report, that such liberalization be "but with sufficientsafeguards and restrictions to prevent the commission offraud and the exercise of undue and improper pressureand influence upon the testator."25

Caneda v. Court of Appeals26 features an extensivediscussion made by Justice Regalado, speaking for theCourt on the conflicting views on the manner ofinterpretation of the legal formalities required in theexecution of the attestation clause in wills.27 Uy Coqueand Andrada are cited therein, along with several othercases, as examples of the application of the rule of strictconstruction.28 However, the Code Commission optedto recommend a more liberal construction through the


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"substantial compliance rule" under Article 809. Acautionary note was struck though by Justice J.B.L.Reyes as to how Article 809 should be applied:

x x x The rule must be limited to disregarding thosedefects that can be supplied by an examination of thewill itself: whether all the pages are consecutivelynumbered; whether the signatures appear in each andevery page; whether the subscribing witnesses are threeor the will was notarized. All these are facts that the willitself can reveal, and defects or even omissionsconcerning them in the attestation clause can be safelydisregarded. But the total number of pages, and whetherall persons required to sign did so in the presence ofeach other must substantially appear in the attestationclause, being the only check against perjury in theprobate proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments byJustice J.B.L. Reyes in its assailed decision, consideringthat the failure to state the number of pages of the will inthe attestation clause is one of the defects which cannotbe simply disregarded. In Caneda itself, the Court

refused to allow the probate of a will whose attestationclause failed to state that the witnesses subscribed theirrespective signatures to the will in the presence of thetestator and of each other,30 the other omission cited byJustice J.B.L. Reyes which to his estimation cannot belightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule,as it now stands, is that omission which can be suppliedby an examination of the will itself, without the need ofresorting to extrinsic evidence, will not be fatal and,correspondingly, would not obstruct the allowance toprobate of the will being assailed. However, those

omissions which cannot be supplied except by evidencealiunde would result in the invalidation of the attestationclause and ultimately, of the will itself."31 Thus, a failureby the attestation clause to state that the testator signedevery page can be liberally construed, since that fact canbe checked by a visual examination; while a failure bythe attestation clause to state that the witnesses signedin one anothers presence should be considered a fatalflaw since the attestation is the only textual guarantee ofcompliance.32

The failure of the attestation clause to state the numberof pages on which the will was written remains a fatalflaw, despite Article 809. The purpose of the law inrequiring the clause to state the number of pages onwhich the will is written is to safeguard against possibleinterpolation or omission of one or some of its pages andto prevent any increase or decrease in the pages.33 Thefailure to state the number of pages equates with theabsence of an averment on the part of the instrumentalwitnesses as to how many pages consisted the will, theexecution of which they had ostensibly just witnessedand subscribed to. Following Caneda, there issubstantial compliance with this requirement if the willstates elsewhere in it how many pages it is comprisedof, as was the situation in Singson and Taboada.

However, in this case, there could have been nosubstantial compliance with the requirements underArticle 805 since there is no statement in the attestationclause or anywhere in the will itself as to the number ofpages which comprise the will.

At the same time, Article 809 should not deviate from theneed to comply with the formal requirements asenumerated under Article 805. Whatever the inclinationsof the members of the Code Commission inincorporating Article 805, the fact remains that they sawfit to prescribe substantially the same formal requisitesas enumerated in Section 618 of the Code of CivilProcedure, convinced that these remained effectivesafeguards against the forgery or intercalation of notarialwills.34 Compliance with these requirements, howeverpicayune in impression, affords the public a high degreeof comfort that the testator himself or herself haddecided to convey property post mortem in the mannerestablished in the will.35 The transcendent legislativeintent, even as expressed in the cited comments of theCode Commission, is for the fruition of the testatorsincontestable desires, and not for the indulgent

admission of wills to probate.

The Court could thus end here and affirm the Court ofAppeals. However, an examination of the will itselfreveals a couple of even more critical defects that shouldnecessarily lead to its rejection.

For one, the attestation clause was not signed by theinstrumental witnesses. While the signatures of theinstrumental witnesses appear on the left-hand margin othe will, they do not appear at the bottom of theattestation clause which after all consists of theiraverments before the notary public.

Cagro v. Cagro36 is material on this point. As in thiscase, "the signatures of the three witnesses to the will donot appear at the bottom of the attestation clause,although the page containing the same is signed by thewitnesses on the left-hand margin."37 While three (3)Justices38 considered the signature requirement hadbeen substantially complied with, a majority of six (6),speaking through Chief Justice Paras, ruled that theattestation clause had not been duly signed, renderingthe will fatally defective.

There is no question that the signatures of the threewitnesses to the will do not appear at the bottom of theattestation clause, although the page containing thesame is signed by the witnesses on the left-hand margin

We are of the opinion that the position taken by theappellant is correct. The attestation clause is "amemorandum of the facts attending the execution of thewill" required by law to be made by the attestingwitnesses, and it must necessarily bear their signatures.An unsigned attestation clause cannot be considered asan act of the witnesses, since the omission of theirsignatures at the bottom thereof negatives theirparticipation.


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The petitioner and appellee contends that signatures ofthe three witnesses on the left-hand margin conformsubstantially to the law and may be deemed as theirsignatures to the attestation clause. This is untenable,because said signatures are in compliance with the legalmandate that the will be signed on the left-hand marginof all its pages. If an attestation clause not signed by thethree witnesses at the bottom thereof, be admitted assufficient, it would be easy to add such clause to a willon a subsequent occasion and in the absence of thetestator and any or all of the witnesses.39

The Court today reiterates the continued efficacy ofCagro. Article 805 particularly segregates therequirement that the instrumental witnesses sign eachpage of the will, from the requisite that the will be"attested and subscribed by [the instrumentalwitnesses]." The respective intents behind these twoclasses of signature are distinct from each other. Thesignatures on the left-hand corner of every page signify,among others, that the witnesses are aware that thepage they are signing forms part of the will. On the other

hand, the signatures to the attestation clause establishthat the witnesses are referring to the statementscontained in the attestation clause itself. Indeed, theattestation clause is separate and apart from thedisposition of the will. An unsigned attestation clauseresults in an unattested will. Even if the instrumentalwitnesses signed the left-hand margin of the pagecontaining the unsigned attestation clause, suchsignatures cannot demonstrate these witnessesundertakings in the clause, since the signatures that doappear on the page were directed towards a whollydifferent avowal.

The Court may be more charitably disposed had thewitnesses in this case signed the attestation clauseitself, but not the left-hand margin of the page containingsuch clause. Without diminishing the value of theinstrumental witnesses signatures on each and everypage, the fact must be noted that it is the attestationclause which contains the utterances reduced intowriting of the testamentary witnesses themselves. It isthe witnesses, and not the testator, who are requiredunder Article 805 to state the number of pages usedupon which the will is written; the fact that the testatorhad signed the will and every page thereof; and that theywitnessed and signed the will and all the pages thereofin the presence of the testator and of one another. Theonly proof in the will that the witnesses have statedthese elemental facts would be their signatures on theattestation clause.

Thus, the subject will cannot be considered to have beenvalidly attested to by the instrumental witnesses, as theyfailed to sign the attestation clause.

Yet, there is another fatal defect to the will on which thedenial of this petition should also hinge. The requirementunder Article 806 that "every will must be acknowledgedbefore a notary public by the testator and the witnesses"

has also not been complied with. The importance of thisrequirement is highlighted by the fact that it had beensegregated from the other requirements under Article805 and entrusted into a separate provision, Article 806.The non-observance of Article 806 in this case is equallyas critical as the other cited flaws in compliance withArticle 805, and should be treated as of equivalentimport.

In lieu of an acknowledgment, the notary public, PetronioY. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ngMaynila."40 By no manner of contemplation can thosewords be construed as an acknowledgment. Anacknowledgment is the act of one who has executed adeed in going before some competent officer or courtand declaring it to be his act or deed.41 It involves anextra step undertaken whereby the signor actuallydeclares to the notary that the executor of a documenthas attested to the notary that the same is his/her ownfree act and deed.

It might be possible to construe the averment as a jurat,

even though it does not hew to the usual languagethereof. A jurat is that part of an affidavit where thenotary certifies that before him/her, the document wassubscribed and sworn to by the executor.42 Ordinarily,the language of the jurat should avow that the documentwas subscribed and sworn before the notary public,while in this case, the notary public averred that hehimself "signed and notarized" the document. Possiblythough, the word "ninotario" or "notarized" encompassesthe signing of and swearing in of the executors of thedocument, which in this case would involve the decedentand the instrumental witnesses.

Yet even if we consider what was affixed by the notarypublic as a jurat, the will would nonetheless remaininvalid, as the express requirement of Article 806 is thatthe will be "acknowledged", and not merely subscribedand sworn to. The will does not present any textualproof, much less one under oath, that the decedent andthe instrumental witnesses executed or signed the will astheir own free act or deed. The acknowledgment madein a will provides for another all-important legalsafeguard against spurious wills or those made beyondthe free consent of the testator. An acknowledgement isnot an empty meaningless act.43 The acknowledgmentcoerces the testator and the instrumental witnesses todeclare before an officer of the law that they hadexecuted and subscribed to the will as their own free actor deed. Such declaration is under oath and under painof perjury, thus allowing for the criminal prosecution ofpersons who participate in the execution of spuriouswills, or those executed without the free consent of thetestator. It also provides a further degree of assurancethat the testator is of certain mindset in making thetestamentary dispositions to those persons he/she haddesignated in the will.

It may not have been said before, but we can assert therule, self-evident as it is under Article 806. A notarial will


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that is not acknowledged before a notary public by thetestator and the witnesses is fatally defective, even if it issubscribed and sworn to before a notary public.

There are two other requirements under Article 805which were not fully satisfied by the will in question. Weneed not discuss them at length, as they are no longermaterial to the

disposition of this case. The provision requires that thetestator and the instrumental witnesses sign each andevery page of the will on the left margin, except the last;and that all the pages shall be numbered correlatively inletters placed on the upper part of each page. In thiscase, the decedent, unlike the witnesses, failed to signboth pages of the will on the left margin, her onlysignature appearing at the so-called "logical end"44 ofthe will on its first page. Also, the will itself is notnumbered correlatively in letters on each page, butinstead numbered with Arabic numerals. There is a lineof thought that has disabused the notion that these tworequirements be construed as mandatory.45 Taken inisolation, these omissions, by themselves, may not be

sufficient to deny probate to a will. Yet even as theseomissions are not decisive to the adjudication of thiscase, they need not be dwelt on, though indicative asthey may be of a general lack of due regard for therequirements under Article 805 by whoever executed thewill.

All told, the string of mortal defects which the will inquestion suffers from makes the probate denialinexorable.

WHEREFORE, the petition is DENIED. Costs againstpetitioner.

SO ORDERED.

DANTE O. TINGAAssociate Justice

WE CONCUR:

LEONARDO A. QUISUMBINGAssociate JusticeChairperson

ANTONIO T. CARPIO CONCHITAAssociate Justice CARPIO MORALESAsscociate JusticeA T T E S T A T I O N

I attest that the conclusions in the above Decision hadbeen reached in consultation before the case wasassigned to the writer of the opinion of the CourtsDivision.

LEONARDO A. QUISUMBINGAssociate JusticeChairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution,and the Division Chairpersons Attestation, it is herebycertified that the conclusions in the above Decision hadbeen reached in consultation before the case wasassigned to the writer of the opinion of the CourtsDivision.

ARTEMIO V. PANGANIBANChief Justice


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SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESACANEDA, JUAN CABALLERO, AUREA CABALLERO,OSCAR LAROSA, HELEN CABALLERO, SANTOSCABALLERO, PABLO CABALLERO, VICTOR RAGA,MAURICIA RAGA, QUIRICA RAGA, RUPERTOABAPO, represented herein by his Attorney-in-Fact,ARMSTICIA * ABAPO VELANO, and CONSESOCANEDA, represented herein by his heirs, JESUSCANEDA, NATIVIDAD CANEDA and ARTUROCANEDA, petitioners,vs.HON. COURT OF APPEALS and WILLIAM CABRERA,as Special Administrator of the Estate of Mateo

Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the presentpetition for review on certiorari is the issue of whether ornot the attestation clause contained in the last will and

testament of the late Mateo Caballero complies with therequirements of Article 805, in relation to Article 809, ofthe Civil Code.

The records show that on December 5, 1978, MateoCaballero, a widower without any children and already inthe twilight years of his life, executed a last will andtestament at his residence in Talisay, Cebu before threeattesting witnesses, namely, Cipriano Labuca, GregorioCabando and Flaviano Toregosa. The said testator wasduly assisted by his lawyer, Atty. Emilio Lumontad, and anotary public, Atty. Filoteo Manigos, in the preparation ofthat last will. 1 It was declared therein, among otherthings, that the testator was leaving by way of legaciesand devises his real and personal properties toPresentacion Gaviola, Angel Abatayo, Rogelio Abatayo,Isabelito Abatayo, Benoni G. Cabrera and MarcosaAlcantara, all of whom do not appear to be related to thetestator. 2

Four months later, or on April 4, 1979, Mateo Caballerohimself filed a petition docketed as Special ProceedingNo. 3899-R before Branch II of the then Court of FirstInstance of Cebu seeking the probate of his last will andtestament. The probate court set the petition for hearingon August 20, 1979 but the same and subsequent

scheduled hearings were postponed for one reason toanother. On May 29, 1980, the testator passed awaybefore his petition could finally be heard by the probatecourt. 3 On February 25, 1981, Benoni Cabrera, on ofthe legatees named in the will, sough his appointment asspecial administrator of the testator's estate, theestimated value of which was P24,000.00, and he wasso appointed by the probate court in its order of March 6,1981. 4

Thereafter, herein petitioners, claiming to be nephewsand nieces of the testator, instituted a second petition,entitled "In the Matter of the Intestate Estate of MateoCaballero" and docketed as Special Proceeding No.3965-R, before Branch IX of the aforesaid Court of FirstInstance of Cebu. On October 18, 1982, hereinpetitioners had their said petition intestate proceedingconsolidated with Special Proceeding No. 3899-R inBranch II of the Court of First Instance of Cebu andopposed thereat the probate of the Testator's will andthe appointment of a special administrator for his estate.5

Benoni Cabrera died on February 8, 1982 hence theprobate court, now known as Branch XV of the RegionalTrial Court of Cebu, appointed William Cabrera asspecial administrator on June 21, 1983. Thereafter, onJuly 20, 1983, it issued an order for the return of therecords of Special Proceeding No. 3965-R to thearchives since the testate proceeding for the probate ofthe will had to be heard and resolved first. On March 26,1984 the case was reraffled and eventually assigned toBranch XII of the Regional Trial Court of Cebu where itremained until the conclusion of the probateproceedings. 6

In the course of the hearing in Special Proceeding No.3899-R, herein petitioners appeared as oppositors andobjected to the allowance of the testator's will on theground that on the alleged date of its execution, thetestator was already in the poor state of health such thathe could not have possibly executed the same.Petitioners likewise reiterated the issue as to thegenuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses,Cipriano Labuca, and the notary public Atty. FiloteoManigos, testified that the testator executed the will inquestion in their presence while he was of sound anddisposing mind and that, contrary to the assertions of theoppositors, Mateo Caballero was in good health and wasnot unduly influenced in any way in the execution of hiswill. Labuca also testified that he and the otherwitnesses attested and signed the will in the presence ofthe testator and of each other. The other two attestingwitnesses were not presented in the probate hearing asthe had died by then. 8

On April 5, 1988, the probate court rendered a decisiondeclaring the will in question as the last will andtestament of the late Mateo Caballero, on theratiocination that:


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. . . The self-serving testimony of the two witnesses ofthe oppositors cannot overcome the positive testimoniesof Atty. Filoteo Manigos and Cipriano Labuca whoclearly told the Court that indeed Mateo Caballeroexecuted the Last Will and Testament now markedExhibit "C" on December 5, 1978. Moreover, the fact thatit was Mateo Caballero who initiated the probate of hisWill during his lifetime when he caused the filing of theoriginal petition now marked Exhibit "D" clearlyunderscores the fact that this was indeed his Last Will.At the start, counsel for the oppositors manifested thathe would want the signature of Mateo Caballero inExhibit "C" examined by a handwriting expert of the NBIbut it would seem that despite their avowal and intentionfor the examination of this signature of Mateo Caballeroin Exhibit "C", nothing came out of it because theyabandoned the idea and instead presented AureaCaballero and Helen Caballero Campo as witnesses forthe oppositors.

All told, it is the finding of this Court that Exhibit "C" isthe Last Will and Testament of Mateo Caballero and that

it was executed in accordance with all the requisites ofthe law. 9

Undaunted by the said judgment of the probate court,petitioners elevated the case in the Court of Appeals inCA-G.R. CV No. 19669. They asserted therein that thewill in question is null and void for the reason that itsattestation clause is fatally defective since it fails tospecifically state that the instrumental witnesses to thewill witnessed the testator signing the will in theirpresence and that they also signed the will and all thepages thereof in the presence of the testator and of oneanother.

On October 15, 1991, respondent court promulgated itsdecision 10 affirming that of the trial court, and ruling thatthe attestation clause in the last will of Mateo Caballerosubstantially complies with Article 805 of the Civil Code,thus:

The question therefore is whether the attestation clausein question may be considered as having substantialycomplied with the requirements of Art. 805 of the CivilCode. What appears in the attestation clause which theoppositors claim to be defective is "we do certify that thetestament was read by him and the attestator, MateoCaballero, has published unto us the foregoing willconsisting of THREE PAGES, including theacknowledgment, each page numbered correlatively inletters of the upper part of each page, as his Last Willand Testament, and he has signed the same and everypage thereof, on the spaces provided for his signatureand on the left hand margin in the presence of the saidtestator and in the presence of each and all of us(emphasis supplied).

To our thinking, this is sufficient compliance and noevidence need be presented to indicate the meaning thatthe said will was signed by the testator and by them (the

witnesses) in the presence of all of them and of oneanother. Or as the language of the law would have it thatthe testator signed the will "in the presence of theinstrumental witnesses, and that the latter witnessed andsigned the will and all the pages thereof in the presenceof the testator and of one another." If not completely orideally perfect in accordance with the wordings of Art.805 but (sic) the phrase as formulated is in substantialcompliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the saidruling of respondent court, but the same was denied inthe latter's resolution of January 14, 1992, 12 hence thisappeal now before us. Petitioners assert that respondentcourt has ruled upon said issue in a manner not inaccord with the law and settled jurisprudence on thematter and are now questioning once more, on the sameground as that raised before respondent court, thevalidity of the attestation clause in the last will of MateoCaballero.

We find the present petition to be meritorious, as weshall shortly hereafter, after some prefatory observations

which we feel should be made in aid of the rationale forour resolution of the controversy.

1. A will has been defined as a species of conveyancewhereby a person is permitted, with the formalitiesprescribed by law, to control to a certain degree thedisposition of his estate after his death. 13 Under theCivil Code, there are two kinds of wills which a testatormay execute. 14 the first kind is the ordinary or attestedwill, the execution of which is governed by Articles 804to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must

be subscribed at the end thereof by the testator himselfor by the testator's name written by some other personin his presence, and by his express direction, andattested and subscribed by three or more crediblewitnesses in the presence of the testator and of oneanother.


The attestation should state the number of pages usedupon 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 hisexpress 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.

If the attestation clause is in a language not known to thewitness, it shall be interpreted to them.


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In addition, the ordinary will must be acknowledgedbefore a notary public by a testator and the attestingwitness. 15 hence it is likewise known as notarial will.Where the attestator is deaf or deaf-mute, Article 807requires that he must personally read the will, if able todo so. Otherwise, he should designate two persons whowould read the will and communicate its contents to himin a practicable manner. On the other hand, if thetestator is blind, the will should be read to him twice;once, by anyone of the witnesses thereto, and thenagain, by the notary public before whom it isacknowledged. 16

The other kind of will is the holographic will, which Article810 defines as one that is entirely written, dated, andsigned by the testator himself. This kind of will, unlike theordinary type, requires no attestation by witnesses. Acommon requirement in both kinds of will is that theyshould be in writing and must have been executed in alanguage or dialect known to the testator. 17

However, in the case of an ordinary or attested will, itsattestation clause need not be written in a language or

dialect known to the testator since it does not form partof the testamentary disposition. Furthermore, thelanguage used in the attestation clause likewise neednot even be known to the attesting witnesses. 18 Thelast paragraph of Article 805 merely requires that, insuch a case, the attestation clause shall be interpretedto said witnesses.

An attestation clause refers to that part of an ordinarywill whereby the attesting witnesses certify that theinstrument has been executed before them and to themanner of the execution the same. 19 It is a separatememorandum or record of the facts surrounding the

conduct of execution and once signed by the witnesses,it gives affirmation to the fact that compliance with theessential formalities required by law has been observed.20 It is made for the purpose of preserving in apermanent form a record of the facts that attended theexecution of a particular will, so that in case of failure ofthe memory of the attesting witnesses, or other casualty,such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause,the complete lack of which would result in the invalidityof the will, 22 should state (1) the number of the pagesused upon which the will is written; (2) that the testatorsigned, or expressly caused another to sign, the will andevery page thereof in the presence of the attestingwitnesses; and (3) that the attesting witnesses witnessedthe signing by the testator of the will and all its pages,and that said witnesses also signed the will and everypage thereof in the presence of the testator and of oneanother.

The purpose of the law in requiring the clause to statethe number of pages on which the will is written is tosafeguard against possible interpolation or omission ofone or some of its pages and to prevent any increase ordecrease in the pages; 23 whereas the subscription of

the signature of the testator and the attesting witnessesis made for the purpose of authentication andidentification, and thus indicates that the will is the verysame instrument executed by the testator and attestedto by the witnesses. 24

Further, by attesting and subscribing to the will, thewitnesses thereby declare the due execution of the willas embodied in the attestation clause. 25 The attestationclause, therefore, provide strong legal guaranties for thedue execution of a will and to insure the authenticitythereof. 26 As it appertains only to the witnesses and notto the testator, it need be signed only by them. 27 Whereit is left unsigned, it would result in the invalidation of thewill as it would be possible and easy to add the clauseon a subsequent occasion in the absence of the testatorand its witnesses. 28

In its report, the Code Commission commented on thereasons of the law for requiring the formalities to befollowed in the execution of wills, in the followingmanner:

The underlying and fundamental objectives permeatingthe provisions on the law on wills in this Project consistsin the liberalization of the manner of their execution withthe end in view of giving the testator more freedom inexpressing his last wishes, but with sufficient safeguardsand restrictions to prevent the commission of fraud andthe exercise of undue and improper pressure andinfluence upon the testator.

This objective is in accord with the modern tendencywith respect to the formalities in the execution of wills. . .. 29

2. An examination of the last will and testament of MateoCaballero shows that it is comprised of three sheets allof which have been numbered correlatively, with the leftmargin of each page thereof bearing the respectivesignatures of the testator and the three attestingwitnesses. The part of the will containing thetestamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by thetestator. The attestation clause in question, on the otherhand, is recited in the English language and is likewisesigned at the end thereof by the three attestingwitnesses hereto. 30 Since it is the proverbial bone ofcontention, we reproduce it again for facility of reference

We, the undersigned attesting Witnesses, whoseResidences and postal addresses appear on theOpposite of our respective names, we do hereby certifythat the Testament was read by him and the testator,MATEO CABALLERO; has published unto us theforegoing Will consisting of THREE PAGES, includingthe Acknowledgment, each page numbered correlativelyin the letters on the upper part of each page, as his LastWill and Testament and he has the same and everypage thereof, on the spaces provided for his signatureand on the left hand margin, in the presence of the saidtestator and in the presence of each and all of us.


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It will be noted that Article 805 requires that the witnessshould both attest and subscribe to the will in thepresence of the testator and of one another. "Attestation"and "subscription" differ in meaning. Attestation is theact of senses, while subscription is the act of the hand.The former is mental, the latter mechanical, and to attesta will is to know that it was published as such, and tocertify the facts required to constitute an actual and legalpublication; but to subscribe a paper published as a willis only to write on the same paper the names of thewitnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestationconsists in witnessing the testator's execution of the willin order to see and take note mentally that those thingsare done which the statute requires for the execution ofa will and that the signature of the testator exists as afact. On the other hand, subscription is the signing of thewitnesses' names upon the same paper for the purposeof identification of such paper as the will which wasexecuted by the testator. As it involves a mental act,there would be no means, therefore, of ascertaining by a

physical examination of the will whether the witnesseshad indeed signed in the presence of the testator and ofeach other unless this is substantially expressed in theattestation.

It is contended by petitioners that the aforequotedattestation clause, in contravention of the expressrequirements of the third paragraph of Article 805 of theCivil Code for attestation clauses, fails to specificallystate the fact that the attesting witnesses the testatorsign the will and all its pages in their presence and thatthey, the witnesses, likewise signed the will and everypage thereof in the presence of the testator and of each

other. We agree.

What is fairly apparent upon a careful reading of theattestation clause herein assailed is the fact that while itrecites that the testator indeed signed the will and all itspages in the presence of the three attesting witnessesand states as well the number of pages that were used,the same does not expressly state therein thecircumstance that said witnesses subscribed theirrespective signatures to the will in the presence of thetestator and of each other.

The phrase "and he has signed the same and everypage thereof, on the spaces provided for his signatureand on the left hand margin," obviously refers to thetestator and not the instrumental witnesses as it isimmediately preceded by the words "as his Last Will andTestament." On the other hand, although the words "inthe presence of the testator and in the presence of eachand all of us" may, at first blush, appear to likewisesignify and refer to the witnesses, it must, however, beinterpreted as referring only to the testator signing in thepresence of the witnesses since said phraseimmediately follows the words "he has signed the sameand every page thereof, on the spaces provided for hissignature and on the left hand margin." What is then

clearly lacking, in the final logical analysis , is thestatement that the witnesses signed the will and everypage thereof in the presence of the testator and of oneanother.

It is our considered view that the absence of thatstatement required by law is a fatal defect orimperfection which must necessarily result in thedisallowance of the will that is here sought to beadmitted to probate. Petitioners are correct in pointingout that the aforestated defect in the attestation clauseobviously cannot be characterized as merely involvingthe form of the will or the language used therein whichwould warrant the application of the substantialcompliance rule, as contemplated in the pertinentprovision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, orundue and improper pressure and influence, defects andimperfections in the form of attestation or in thelanguage used therein shall not render the will invalid if itis not proved that the will was in fact executed andattested in substantial compliance with all the

requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeedsubscribed at the end thereof and at the left margin ofeach page by the three attesting witnesses, it certainlycannot be conclusively inferred therefrom that the saidwitness affixed their respective signatures in thepresence of the testator and of each other since, aspetitioners correctly observed, the presence of saidsignatures only establishes the fact that it was indeedsigned, but it does not prove that the attesting witnessesdid subscribe to the will in the presence of the testatorand of each other. The execution of a will is supposed to

be one act so that where the testator and the witnessessign on various days or occasions and in variouscombinations, the will cannot be stamped with theimprimatur of effectivity. 33

We believe that the further comment of former JusticeJ.B.L. Reyes 34 regarding Article 809, wherein he urgedcaution in the application of the substantial compliancerule therein, is correct and should be applied in the caseunder consideration, as well as to future cases withsimilar questions:

. . . The rule must be limited to disregarding thosedefects that can be supplied by an examination of thewill itself: whether all the pages are consecutivelynumbered; whether the signatures appear in each andevery page; whether the subscribing witnesses are threeor the will was notarized. All theses are facts that the willitself can reveal, and defects or even omissionsconcerning them in the attestation clause can be safelydisregarded. But the total number of pages, and whetherall persons required to sign did so in the presence ofeach other must substantially appear in the attestationclause, being the only check against perjury in theprobate proceedings. (Emphasis ours.)


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3. We stress once more that under Article 809, thedefects and imperfections must only be with respect tothe form of the attestation or the language employedtherein. Such defects or imperfections would not rendera will invalid should it be proved that the will was reallyexecuted and attested in compliance with Article 805. Inthis regard, however, the manner of proving the dueexecution and attestation has been held to be limited tomerely an examination of the will itself without resortingto evidence aliunde, whether oral or written.

The foregoing considerations do not apply where theattestation clause totally omits the fact that the attestingwitnesses signed each and every page of the will in thepresence of the testator and of each other. 35 In such asituation, the defect is not only in the form or language ofthe attestation clause but the total absence of a specificelement required by Article 805 to be specifically statedin the attestation clause of a will. That is precisely thedefect complained of in the present case since there isno plausible way by which we can read into thequestioned attestation clause statement, or animplication thereof, that the attesting witness did actually

bear witness to the signing by the testator of the will andall of its pages and that said instrumental witnesses alsosigned the will and every page thereof in the presence ofthe testator and of one another.

Furthermore, the rule on substantial compliance inArticle 809 cannot be revoked or relied on byrespondents since it presupposes that the defects in theattestation clause can be cured or supplied by the text ofthe will or a consideration of matters apparent therefromwhich would provide the data not expressed in theattestation clause or from which it may necessarily begleaned or clearly inferred that the acts not stated in the

omitted textual requirements were actually compliedwithin the execution of the will. In other words, defectsmust be remedied by intrinsic evidence supplied by thewill itself.

In the case at bar, contrarily, proof of the acts required tohave been performed by the attesting witnesses can besupplied by only extrinsic evidence thereof, since anoverall appreciation of the contents of the will yields nobasis whatsoever from with such facts may be plausiblydeduced. What private respondent insists on are thetestimonies of his witnesses alleging that they saw thecompliance with such requirements by the instrumentalwitnesses, oblivious of the fact that he is therebyresorting to extrinsic evidence to prove the same andwould accordingly be doing by the indirection what in lawhe cannot do directly.

4. Prior to the advent of the Civil Code on August 30,1950, there was a divergence of views as to whichmanner of interpretation should be followed in resolvingissues centering on compliance with the legal formalitiesrequired in the execution of wills. The formalrequirements were at that time embodied primarily inSection 618 of Act No. 190, the Code of Civil Procedure.Said section was later amended by Act No. 2645, but the

provisions respecting said formalities found in Act. No.190 and the amendment thereto were practicallyreproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliancerule. This was first laid down in the case of Abangan vs.Abangan, 36 where it was held that the object of thesolemnities surrounding the execution of wills is to closethe door against bad faith and fraud, to avoid substitutionof wills and testaments and to guarantee their truth andauthenticity. Therefore, the laws on this subject shouldbe interpreted in such a way as to attain these primordialends. Nonetheless, it was also emphasized that onemust not lose sight of the fact that it is not the object ofthe law to restrain and curtail the exercise of the right tomake a will, hence when an interpretation already givenassures such ends, any other interpretation whatsoeverthat adds nothing but demands more requisites entirelyunnecessary, useless and frustrative of the testator's lastwill, must be disregarded. The subsequent cases ofAvera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs.Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergelde Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all

adhered to this position.

The other view which advocated the rule that statuteswhich prescribe the formalities that should be observedin the execution of wills are mandatory in nature and areto be strictly construed was followed in the subsequentcases of In the Matter of the Estate of Saguinsin, 43 Inre Will of Andrada, 44 Uy Coque vs. Sioca, 45 In reEstate of Neumark, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court withthe occasion to clarify the seemingly conflictingdecisions in the aforementioned cases. In said case of

Gumban, the attestation clause had failed to state thatthe witnesses signed the will and each and every pagethereof on the left margin in the presence of the testator.The will in question was disallowed, with these reasonstherefor:

In support of their argument on the assignment of errorabove-mentioned, appellants rely on a series of cases ofthis court beginning with (I)n the Matter of the (E)state ofSaguinsin ([1920], 41 Phil., 875), continuing with In reWill of Andrada [1921], 42 Phil., 180), Uy Coque vs.Navas L. Sioca [1922], 43 Phil., 405), and In re Estate ofNeumark ([1923], 46 Phil., 841), and ending with Sanovs. Quintana ([1925], 48 Phil., 506). Appellee counterswith the citation of a series of cases beginning withAbangan vs. Abangan ([1919], 40 Phil., 476), continuingthrough Aldaba vs. Roque ([1922], 43 Phil., 378), andFernandez vs. Vergel de Dios ([1924], 46 Phil., 922),and culminating in Nayve vs. Mojal and Aguilar ([1924],47 Phil., 152). In its last analysis, our task is to contrastand, if possible, conciliate the last two decisions cited byopposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decidedthat an attestation clause which does not recite that the


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witnesses signed the will and each and every pagethereof on the left margin in the presence of the testatoris defective, and such a defect annuls the will. The caseof Uy Coque vs. Sioca, supra, was cited, but the case ofNayve vs. Mojal and Aguilar, supra, was not mentioned.In contrast, is the decision in Nayve vs. Mojal andAguilar, supra, wherein it was held that the attestationclause must estate the fact that the testator and thewitnesses reciprocally saw the signing of the will, forsuch an act cannot be proved by the mere exhibition ofthe will, if it is not stated therein. It was also held that thefact that the testator and the witnesses signed each andevery page of the will can be proved also by the mereexamination of the signatures appearing on thedocument itself, and the omission to state such evidentfacts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previouscases; seldom do they admit inconsistency in doctrine.Yet here, unless aided impossible to reconcile the Mojaland Quintana decisions. They are fundamentally atvariance. If we rely on one, we affirm. If we rely on theother, we reverse.

In resolving this pu

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