of 1 243. Forms of Wills (Article 804-819)

A. NOTARIAL WILL (804-819) Purpose of the Formalities Written Instrument Language Requirement

SUBSECTION 3. - Forms of Wills

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

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

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

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

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

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) 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. (n)

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n)

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

Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a)

Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it,

whatever be the time of prior dispositions. (n) Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n)

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

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

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

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1. Suroza v. Honardo A.M. No. 2026-CFI December 19, 1981

Aquino J:

Doctrine In the opening paragraph of the will, it was stated that English was a language understood and known to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into Filipino language. That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void.

Law: Art. 804. Every will must be in writing and executed in a language or dialect known to the testator.

Facts: In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and lot to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix in the said will and she petitioned before CFI Rizal that the will be admitted to probate. The presiding judge, Honrado admitted the will to probate and assigned Paje as the administratrix. Honrado also issued an ejectment order against the occupants of the house and lot subject of the will.

Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in the Veterans Hospital), learned of the probate proceeding when she received the ejectment order (as she was residing in said house and lot).

Nenita opposed the probate proceeding. She alleged that the said notarial will is void because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the compulsory heir, (c) the notarial will is written in English a language not known to Marcelina because the latter was illiterate so much so that she merely thumbmarked the will, (d) the notary public who notarized will admitted that Marcelina never appeared before him and that he notarized the said will merely to accommodate the request of a lawyer friend but with the understanding that Marcelina should later appear before him but that never happened.

Honrado still continued with the probate despite the opposition until testamentary proceeding closed and the property transferred to Marilyn Sy. Nenita then filed this administrative case against Honrado on the ground of misconduct.

Issue: Whether or not Honrado is guilty of misconduct for admitting into probate a void will.

Held: Yes, Honrado is guilty of misconduct for admitting into probate a void will and Honrado was fined by the Supreme Court

Ratio: Despite the valid claim raised by Nenita, he still continued with the testamentary proceeding, this showed his wrongful intent. He may even be criminally liable for knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance. The will is written in English and was thumb marked by an obviously illiterate Marcelina. This could have readily been perceived by Honrado that that the will is void. In the opening paragraph of the will, it was stated that English was a language understood and known to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into Filipino language. That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Had Honrado been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to Agapito who was still alive.

2. TESTATE ESTATE OF MARIA ZUIGA VDA. DE PANDO, deceased. JUAN REYES, petitioner-administrator-appellant, vs. DOLORES ZUIGA VDA. DE VIDAL, oppositor-appellee. Jose Sotelo Mati and Agustin Alvarez Salazar for appellant. Jose Perez Cardenas for appellee.

BAUTISTA ANGELO, J.:

This concerns the admission to probate of a document claimed to be the last will and testament of Maria Zuiga Vda. de Pando who died in the City of Manila on October 29, 1945. On November 6, 1945, a petition for the probate of said will was filed in the Court of First Instance of Manila. On December 21, 1945, Dolores Zuiga Vda. de Vidal, sister of the deceased, filed an opposition based on several grounds. And, after several days of trial, at which both parties presented their respective evidence, the court rendered its decision

of 3 24disallowing the will on the ground that the signatures of the deceased appearing therein are not genuine, that it was not proven that the deceased knew the Spanish language in which it was written, and that even if the signatures are genuine, the same reveal that the deceased was not of sound mind when she signed the will. From this decision petitioner appealed to this Court.

While petitioner imputes nine errors to the lower court, we believe, however, that for purposes of this appeal of discussion of some would be sufficient. Thus, the issues may be boiled down as follows: 1) Whether or not the signatures of the deceased appearing in the will (Exhibit "C") are genuine; 2) whether or not there is evidence to show that the testatrix knew the language in which the will was written; and 3) whether or not the testatrix was of sound and disposing mind when she signed the will.

1. To prove that the will was signed by the testatrix in accordance with law, petitioner presented as witnesses the three persons who attested to the execution of the will. These witnesses are: Cornelia Gonzales de Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to provide the deceased with ice every day, and in one of those occasions she went to her house to bring ice, she requested to act witness to the execution of the will. The second was a laborer whose job was is to fix bed made of rattan, and in one of those days he went to the house of the deceased to work, he was asked also to witness the signing of the will. And the third was a neighbor of the deceased for many years who was also requested to act as an instrumental witness. These witnesses testified in their own simple and natural way that the deceased signed the will seated on her bed but over a small table placed near the bed in their presence, and after she had signed it in the places where her signatures appear, they in turn signed it in the presence and in the presence of each other. This is the substance of what they have testified and from an examination of their testimony to the court entertains no doubt that they had told the truth. There is nothing in their testimony which may in any way reflect against their credibility nor has the oppositor proven fact or circumstance which may give rise to the suspicion that they testified out of personal interest or pecuniary consideration. They have impressed the court as simple persons who had intervened in the execution of the will out merely of deference to the testatrix whom they had served for sometime and had known to be a good and respectable woman.

What evidence has the oppositor presented to contradict the testimony of these instrumental witnesses? only one expert witness, Jose G. Villanueva, who made a comparative analysis of the signatures appearing in the will in relation to some genuine signatures of the deceased, and in fact testified on the analysis and study he has made of said signatures and submitted a memorandum on the study and comparison he has made. And in his testimony as well as in his memorandum, this witness has reached the conclusion that the hand that wrote the signatures of the deceased appearing in the will is not the same hand that wrote the genuine signatures he had examined and which he used as basis of his analytical study, thereby concluding that said signatures are not genuine. The lower court gave full faith and credit to the opinion of this expert witness, and decreed as a result that the will cannot be admitted to probate.

There are, however, certain important facts and circumstances which make us differ from this opinion of the lower court. In the first place, we find that the opinion of this expert witness has been rebutted by another expert witness Jose C. Espinosa, whose opinion, to our mind, deserves more weight and credence. And our reason for reaching this conclusion is the fact that the standards of the comparison used by Espinosa are more reliable than those used by Villanueva in the comparison are two signatures appearing in two documents executed on November 10, 1942, one signature in an identification card affixed in April 1940, a half signature appearing in a letter written on October 8, 1943, one signature appearing in a letter written on July 16, 1945, and one signature appearing in a letter written on January, 1945, whereas the disputed signatures appearing in the will were affixed on October 29, 1945. On the other hand, the standards used by Espinosa in making his comparative study bear dates much closer to that of the disputed signatures. Thus, he examined four genuine signatures that were affixed on October 16, 1945, other four signatures that were affixed in October 1945, one on January 2, 1945, on January 24, 1945, and one on September 24 1945, He also examined one affixed on March 12, 1941, only for emphasis. The closeness or proximity of the time in which the standards used had been written to that of the suspected signature or document is very important to bring about an accurate analysis and conclusion. the selection of the proper standards of comparison is of paramount importance especially if we consider the age and the state of the health of the author of the questioned signatures. a signature affixed in 1941 may involved characteristics different from those borne by a signature affixed in 1945. And this is because the passing of time and the increase in age may have a decisive influence in the writing characteristics of a person. It for this reasons that the authorities of the opinion that in order to bring about an accurate comparison and analysis, the standard of comparison must be as close as possible in point of time to the suspected signature. Such was not followed in the study made by Villanueva. But such was observed in the study made by Espinosa. He followed the standard practice in handwriting analysis. It is for this reason that we hold that Espinosa's opinion deserves more weight and consideration.

The standards should, if possible, have been made by the same time as the suspected document. It is preferable that the standards embraced the time of the origin of the document, so that one part comes from the time after the origin. (Page 423 "Modern Criminal Investigation" by Soderman and O' Connell, 1936, Funk and Wagnalls Company, New York and London.)

If possible less than five or six signatures should always be examined and preferably double that number." (Page 139, Forensic Chemistry and Scientific Criminal Investigation by Lucas, 1935, Edward Arnold & Co., London.)

2. Another ground on which the lower court base the disallowance of the will is the failure of the petitioner to prove that the testratrix knew and spoke the language in which the will in question appears to have been written. According to the lower court, the law requires that the will should be written in the dialect or language known to the testator and this fact having been proven, the probate of the will must fail. And the wall was disallowed.

of 4 24There is indeed nothing in the testimony of the witnesses presented by the petitioner which would indicate that the testatrix knew and spoke the Spanish language used in the preparation of the will in question. But, in our opinion, this failure alone does not in itself suffice to conclude that this important requirement of the law has not been complied with, it appearing that there is enough evidence on record which supplies this technical omission. In the first place, we have the undisputed fact that the deceased was a mestiza espaola, was married to a Spaniard, Recaredo Pando, and made several trips to Spain.

In the second place, we have the very letters submitted as evidence by the oppositor written in Spanish by the deceased possessed the Spanish language, oppositor cannot now be allowed to allege the contrary. These facts give rise to the presumption that the testatrix knew the language in which the testament has been written, which presumption should stand unless the contrary is proven (Abangan vs. Abangan, 40 Phil., 476; Gonzales vs. Laurel, 46 Phil. 750). And this presumption has not been overcome. And finally, we have the very attestation clause of the will which states that the testatrix knew and possessed the Spanish language. It is true that this matter is not required to be stated in the attestation clause, but its inclusion can only mean that the instrumental witnesses wanted to make it of record that the deceased knew the language in which the will was written. There is, therefore, no valid reason why the will should be avoided on this ground.

3. The remaining ground which the lower court has considered in disallowing the will is the fact that the deceased was not of sound and disposing mind when she signed the will, and it reached this conclusion, not because of any direct evidence on the matter, but simply because the deceased signed the will in a somewhat varied form. On this point the lower court said: El Juzgado es de opinion que aunque se admita que las firmas arriba indicadas feuran de Maria Zuiga Vda. de Pando, las mismas revelan que ella no estabe en el pleno de sus facultades mentales cuando la hicieron firmar el documento, Exhibit C, pues el hecho de que en una sola ocasion la repetida Maria Zuiga Vda. de Pando firmo dos veces, sin escribir su verdadero nombre, demuestra que ella no se daba cuenta de sus actos por no hallarse mentalmente sana. Si esto es asi, no se debe legalizar como testamento y ultima voluntad de la finada Maria Zuiga Vda. de Pando el documento, Exhibit C, porque el Articulo 614 de la Ley 190 y el Articulo 12, Reglamentos de los Tribunales, disponen que solamente pueden otorgar testamento las personas que al tiempo de su otorgamiento estaban en el pleno goce de sus facultades mentales. The above conclusion is contrary to what the instrumental witnesses have said on this point. Cornelio Gonzales de Romero stated that she spoke to the deceased before the signing of the will, and judging from the way she spoke she was of the impression that the deceased was of sound mind at the time. To the same effect is the testimony of Consuelo B. de Catindig. She said that her impression when the deceased signed the will was that she could still talk and read, only that she was weak. In fact she read the will before signing it.

These statements had not been contradicted. They give an idea of the mental had not contradicted. They give an idea of mental condition of the deceased in the will differ from each other in certain respects, this is only due to her age and state of health rather than to a defective mental condition. They do not reveal a condition of forgery or lack of genuineness. These differences or irregularities are common in the writings of old people and, far from showing lack of genuineness, are indicative of the age, sickness, or weak condition of the writer. A comparison of the three disputed signatures in the will readily give this impression.

Abbreviated, distorted and illegible, forms, which are sufficiently free and rapid, often actually indicate genuineness rather than forgery even though they are very unusual and not exactly like those in the standard writing. Those who write of difficulty or hesitation through some physical infirmity may sometimes produced broken and unfinished signatures and these results, which in themselves are distinctly divergent as compared with signatures produced under conditions of strength and health, may forcefully indicate genuineness . Under conditions of weakness due to diseased or age, parts of a genuine signature may be clumsily written over a second time not at just the same place and in a way when clearly shows that the writer either could not see or was so week and inattentive as not to care what the result might be. This careless, perfectly evident repetition (figure 184), unlike the painstaking and delicate retouching of the forger, often indicates genuineness. (Page 365, Questioned Documents by Osborne, 2nd Edition, 1927.)

We are, therefore, of the opinion that the lower court erred in disallowing the will Exhibit C. Wherefore, the decision appealed from is hereby reversed. The Court admits the will Exhibit C to probate, and remands these case to the lower court for further proceedings, with costs against the appellee.

Testators signature at the end of the will

3. Taboada vs. Rosal GR L-36033. November 5, 1982

FACTS Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The will consisted of two pages, the first page containing all the testamentary dispositions of the testator and was signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three instrumental witnesses. The second page consisted of the attestation clause and the acknowledgment was signed at the end of the attestation clause by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed the will for want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix, while the three witnesses only signed at the left hand margin of the page. The judge opined that compliance with the formalities of the law required that the witnesses also sign at the end of the will because the witnesses attest not only the will itself but the signature of the testatrix. Hence, this petition.

of 5 24ISSUE Was the object of attestation and subscription fully when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions? HELD On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by a subscribing witness to be the same will executed by the testatrix; and b) that the failure of the attestation clause to state the number of pages used in writing the will would have been a fatal defect were it not for the fact that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.

CUSTOMARY SIGNATURE; FACSIMILE SIGNATURE

TESTATOR SIGNING THROUGH AND AGENT

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

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, et al., oppositors-appellants. T. de los Santos for appellee. Climaco and Climaco for appellants. LABARADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made:

The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate. In view of the fact that the appeal involves a question of law the said court has certified the case to us.

The facts as found by the trial court are as follows:

It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space.

The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis supplied)

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

The present law, Article 805 of the Civil Code, in part provides as follows:

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

The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows: No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis supplied).

Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700: It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so, and this in the testator's presence and by his

of 6 24express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.

Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the witness signing at the request of the testator.

Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one forms given above. He did not do so, however, and this is failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.

WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner.

ATTESTED AND SUBSCRIBED BY THREE CREDIBLE WITNESSES

5. Icasiano v. Icasiano G.R. No. L-18979 June 30, 1964 J.B.L. Reyes, J:

Doctrine: The purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed.

Law: Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

Facts: Celso Icasiano (petitioner-appelle), filed a petition for the probate of the will of Josefa Villacorte and for his appointment as executor thereof. It appears from the evidence that the testatrix died on September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in duplicates, an original and a carbon copy. On the day that it was subscribed and attested, the lawyer only brought the original copy of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in his presence. On the other hand, Natividad Icasiano de Gomez and Enrique Icasiano (oppositor-appellants) filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page is sufficient to deny probate of the will?

Held: No, failure of one of the subscribing witnesses to affix his signature to a page is sufficient to deny probate of the will Ratio:

of 7 24 The failure to sign was entirely through pure oversight or mere inadvertence. Since the duplicated bore the required signatures, this proves that the omission was not intentional. Even if the original is in existence, a duplicate may still be admitted to probate since the original is deemed to be defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be probated. The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed. Note that this ruling should not be taken as a departure from the rules that the will should be signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.

CREDIBLE V COMPETENT WITNESSES

TEST OF PRESENCE

6. Nera vs Rimando

Topic: What In the presence of each other means. Art 805

Doctrine: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

Facts: A certain will was executed by a testator. The location of such execution was in a large room connecting to a smaller room some eight to ten feet away. What separates the two rooms was a curtain. When the testator died, the subject will was submitted for probate. However, the petitioner opposed the admission alleging that at the time the will was being signed, one of the witnesses was in the smaller/outside room while the testator and the other subscribing witnesses was in the larger/inner room.

The RTC did not consider the determination of the issue as to the position of the witness as of vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would not be sufficient to invalidate the execution of the will. CA affirms. Thus, this petition

Issue: WON the subscribing witness was able to see the testator and other witnesses in the act of affixing their signatures.

Held & Rationale

Yes. The Supreme Court emphasized that the true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. The position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. The Supreme Court, in this case, determined that all the parties were in the same small room when each other signed. Hence, they were in each others presence (though the facts of the case didnt elaborate the SC just ruled so). The SC ruled that if some of the witnesses were really in the outer room (a fact which was not established according to the SC) separated by a curtain, then the will is invalid, the attaching of those signatures under circumstances not being done in the presence of the witness in the outer room.

Disposition: Respondent won. The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

SIGNATURE ON THE LEFT MARGIN PAGINATION REQUIREMENT

7. Lopez vs Liboro

Topic: Pagination of the Will Witnesses to a Will Language of the Will Thumb Mark as Signature. Art. 805

Doctrine: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

Facts: In 1947, Don Sixto Lopez executed a will where Jose Lopez was named an heir. Agustin Liboro questioned the validity of the said will based on the following ground, among others: (1) The first sheet, which is also the first page) is not paged either in letters or in Arabic numerals. (2) That the witnesses to the will provided contradictory statements. (3) That Don Sixto used his thumb mark to sign the will. (4)There was no indication in the will that the language used therein is known by Don Sixto Lopez.

of 8 24

Issue: Whether or not the will is valid?

Held & Rationale

Yes. The omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numeral words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Further, the first pages is captioned Testamento. The contradictions in the testimony of the instrumental witnesses as are set out in Liboros appelants brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. Don Sixto affixed his thumb mark to the instrument instead of signing his name. The reason for this was that he was suffering from partial paralysis. There is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. There is no statutory requirement which prescribes that it must be expressly placed in the will that the testator knows the language being used therein. It is a matter that may be established by proof aliunde.

Disposition: Petitioner won.

ATTESTATION CLAUSE

FAILURE TO STATE THE NUMBER OF PAGES

8. SAME TABOADA ROSAL

G.R. No. L-36033 November 5, 1982 IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin), respondent. Erasmo M. Diola counsel for petition. Hon. Avelino S. Rosal in his own behalf. GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because

of 9 24of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition. For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides: Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

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

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

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

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

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature. We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

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

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103).

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

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

of 10 24We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page.

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

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

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

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

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

ERROR IN INDICATING THE NUMBER OF PAGES

9. SAMANIEGO-CALEDA V ABENA

Doctrine: Article 809 of the Civil Code which reads: In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

Facts: Petitioner Paz Samaniego-Celada was the first cousin of decent Margarita S. Mayores (Margarita) while respondent was the decedents lifelong companion since 1929.

On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents, grandparents, and siblings predeceased her. She was survived by her first cousins which included petitioner.

Before her death, Margarita executed a will where she bequeathed portions of her undivided shares in real properties to respondent. Margarita also left all her personal properties to respondent whom she likewise designated as sole executor of her will.

RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as executor of the will. CA affirmed.

Issue: WON the CA erred in not declaring the will invalid for failure to comply with the formalities required by law. NO

Held: Respondent won.

A review of the findings of the RTC reveal that petitioners arguments lack basis. The RTC correctly held: Anent the contestants submission that the will is fatally defective for the reason that its attestation clause states that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only because the attestation is not a part of the notarial will, the same is not accurate. While it is true that the attestation clause is not a part of the will,

of 11 24the court, after examining the totality of the will, is of the considered opinion that error in the number of pages of the will as stated in the attestation clause is not material to invalidate the subject will.

It must be noted that the subject instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the pages. The error must have been brought about by the honest belief that the will is the whole instrument consisting of three (3) pages inclusive of the attestation clause and the acknowledgement. The position of the court is in consonance with the doctrine of liberal interpretation enunciated in Article 809 of the Civil Code which reads:

In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

The court also rejects the contention of the oppositors that the signatures of the testator were affixed on different occasions based on their observation that the signature on the first page is allegedly different in size, texture and appearance as compared with the signatures in the succeeding pages. After examination of the signatures, the court does not share the same observation as the oppositors. The picture (Exhibit H-3) shows that the testator was affixing her signature in the presence of the instrumental witnesses and the notary. There is no evidence to show that the first signature was procured earlier than February 2, 1987. Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the subject will. In fact, the picture reveals that the testator was in a good mood and smiling with the other witnesses while executing the subject will (Exhibit H) In fine, the court finds that the testator was mentally capable of making the will at the time of its execution, that the notarial will presented to the court is the same notarial will that was executed and that all the formal requirements (See Article 805 of the Civil Code) in the execution of a will have been substantially complied with in the subject notarial will.

10. *****LOPEZ V LOPEZ- MISSING

FAILURE TO STATE THE NUMBER OF WITNESSES

11. CASE TITLE: Estate of Ablada v Abaja AUTHOR: Joey TOPIC: Failure to state the number of witnesses ARTICLE NUMBER UNDER AND PROVISION

Section 618 of the Code of Civil Procedure, the requisites of a will are the following: (1) The will must be written in the language or dialect known by the testator; (2) The will must be signed by the testator, or by the testators name written by some other person in his presence and by his express direction; (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of each other; (4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page thereof on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all the pages of the will in the presence of the testator and of each other.

DOCTRINE The failure of the attestation clause to state the number of attesting witnesses is not a fatal defect.

FACTS:

Abada died sometime in May 1940. His widow Paula Toray ("Toray") died sometime in September 1943. Both died without legitimate children.

Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja and Rosario Cordova. Alipio C. Abaja (son of Eugolio) filed with the then Court of First Instance of Negros Occidental (now RTC-Kabankalan) a petition for the probate of the last will and testament of Abada.

Nicanor Caponong opposed the petition on the ground that Abada left no will when he died in 1940.

He further alleged that the will, if Abada really executed it, should be disallowed for the following reasons:

It was not executed and attested as required by law;

It was not intended as the last will of the testator

of 12 24It was procured by undue and improper pressure and influence on the part of the beneficiaries.

Other alleged intestate heirs (nephews, nieces, grandchildren) also opposed the petition citing the same grounds

Alipio filed another petition before the RTC-Kabankalan for the probate of the last will and testament of Toray. This was again opposed by Capanong and other intestate heirs.

Caponong filed a petition before the RTC-Kabankalan praying for the issuance in his name of letters of administration of the intestate estate of Abada and Toray.

the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of Torays will became final and executory.

RTC: the Last Will and Testament of Alipio Abada is admitted and allowed probate. CA: affirmed

ISSUE:

WON Court of Appeals erred in sustaining the RTC-Kabankalan in admitting to probate the will of Abada.

RULING:

No

Requisites of a Will under the Code of Civil Procedure Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following: (1) The will must be written in the language or dialect known by the testator; (2) The will must be signed by the testator, or by the testators name written by some other person in his presence and by his express direction; (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of each other; (4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page thereof on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all the pages of the will in the presence of the testator and of each other.

Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it.

We rule to apply the liberal construction in the probate of Abadas will. Abadas will clearly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde.

DISPOSITIVE: WHEREFORE, we AFFIRM the Decision of the Court of Appeals .

FAILURE TO STATE THAT THE TESTATOR SIGNED THROUGH AN AGENT

12. CASE TITLE: Garcia v Lacuesta AUTHOR: Joey TOPIC: Failure to state that the testator signed through an agent ARTICLE NUMBER UNDER AND PROVISION

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following: (1) The will must be written in the language or dialect known by the testator; (2) The will must be signed by the testator, or by the testators name written by some other person in his presence and by his express direction; (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of each other;

of 13 24(4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page thereof on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all the pages of the will in the presence of the testator and of each other.

DOCTRINE Where it appears that the testator caused another person to write his name in the will, such fact must be stated in the attestation clause. A failure to make such a recital is a fatal defect.

That the testator affixed a cross after his name written by another person is not sufficient indication that the testator in fact signed the will, absent a clear showing that the cross is the customary signature of the testator, or at the very least, one of the ways by which the testator signed his name.

FACTS:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, following below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name

The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed

to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses;

to certify that after the signing of the name of the testator by Atty. Florentino Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof;

to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

ISSUE: WON the will is valid

RULING:

No The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure.

Petitioner argues that there is no need for such recital because the cross written by the testator after his name is sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumb mark, the latter having been held sufficient by this Court in other cases.

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

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

DISPOSITIVE: Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner.

ATTESTING SIGNATURES

13. TESTATE ESTATE OF CAGRO V. CAGRO

ART 804-808

of 14 24

DOCTRINE: The attestating signatures of the witnesses at the bottom of the will affirms and solidifies that what is provided for in the will is in truth made at the instance of the decedent. It is an indispensable requirement, such that its absence would nullify the will.

FACTS: The case is an appeal interposed by the oppositors from a decision of the CFI which admitted to probate a will allegedly executed by Vicente Cagro, the decedent. The appellants insisted that the will is defective because the attestation was not signed by the witnesses at the bottom although the page containing the same was signed by the witnesses on the left hand margin. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform substantially to law and may be deemed as their signatures to the attestation clause.

ISSUE: Whether or not the will is valid.

HELD: No, the will is not valid. The attestation clause is a memorandum of the facts attending the execution of the will. It is required by law to be made by the attesting witnesses and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses since the omission of their signatures at the bottom negatives their participation.

Moreover, the signatures affixed on the left hand margin is not substantial conformance to the law. The said signatures were merely in conformance with the requirement that the will must be signed on the left-hand margin of all its pages. If the attestation clause is unsigned by the 3 witnesses at the bottom, it would be easier to add clauses to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

The probate of the will is denied. Respondent won.

FATALLY DEFECTIVE ATTESTATION CLAUSE

14. AZUELA v. COURT OF APPEALS

ART: 804-809 DOCTRINE: Defects in a will: (1) AC did not state number of pages (2) Witnesses did not sign the Attestation Clause (3) No acknowledgment by a notary (4) No signature of the testator in each and every page (5) Pages were not numbered consecutively Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection.

FACTS: Azuela filed a petition with the trial court for the probate of a notarial will purportedly executed by Igsolo. The will consisted of two (2) pages and was written in Filipino. The attestation clause did not state the number of pages and it was not signed by the attesting witnesses at the bottom thereof. The said witnesses affixed their signatures on the left-hand margin of both pages of the will though. Castillo opposed the petition, claiming that the will was a forgery. She also argued that the will was not executed and attested to in accordance with law. She pointed out that the decedents signature did not appear on the second page of the will, and the will was not properly acknowledged.

The trial court held the will to be authentic and to have been executed in accordance with law and, thus, admitted it to probate, calling to fore the modern tendency in respect to the formalities in the execution of a willwith the end in view of giving the testator more freedom in expressing his last wishes. According to the trial court, the declaration at the end of the will under the sub-title, Patunay Ng Mga Saksi, comprised the attestation clause and the acknowledgement, and was a substantial compliance with the requirements of the law. It also held that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfied the purpose of identification and attestation of the will.

The CA, however, reversed the trial courts decision and ordered the dismissal of the petition for probate. It noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.

Azuela argues that the requirement under Article 805 of the Civil Code that the number of pages used in a notarial will be stated in the attestation clause is merely directory, rather than mandatory, and thus susceptible to what he termed as the substantial compliance rule.

ISSUE: Whether or not the subject will complied with the requirements of the law and, hence, should be admitted to probate.

HELD: No, the will DID NOT comply with the requirements of the law, hence it should NOT be admitted to probate. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all

of 15 24three defects is just aching for judicial rejection.

Although there is the substantial compliance rule. Justice J.B.L. Reyes cautioned that the rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: (whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarize)

However, those omissions which cannot be supplied except by evidence would result in the invalidation of the attestation clause and ultimately, of the will itself.

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Art. 809. This requirement aims at safeguarding the will against possible interpolation or omission of one or some of its pages and thus preventing any increase or decrease in the pages. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause. Art. 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be attested and subscribed by them. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. An unsigned attestation clause results in an unattested will.

Petition denied. Respondent won.

CONFLICTING TESTIMONIES OF WITNESSES

15. ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA, AMOR DANILA, MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA NISTA, HEIRS OF DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and ADELAIDA NISTA, petitioners, vs. COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS OF BUENAVENTURA GUERRA, respondents. Ernesto C. Hidalgo for petitioners. Romulo S. Brion & Florentino M. Poonin for private respondents. GUERRERO, J.: Appeal by way of certiorari of the decision 1 of the Court of Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista Petitioner-appellee, versus Buenaventura Guerra, et al., Oppositors -Appellants, " denying and disallowing the probate of the second last will and codicil of the late Eugenia Danila previously probated by the Court of First Instance of Laguna Branch III at San Pablo City. The facts are rotated in the appealed decision. the pertinent portions of which state:

It appears that on June 2, 1966, Adelaida Nista who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament dated March 9, 1963 (Exhibit H) and codicil dated April 18, 1963 (Exhibit L) of the late Eugenia Danila who died on May 21, 1966. The petitioner prayed that after due notice and proper hearing, the alleged will and codicil be probates and allowed and that she or any other person be appointed as administrator of the testatrix's estate. She also prayed that in case no opposition thereto be interposed and the value of the estate be less than P10,000.00, said estate be summarily settled in accordance with the Rules.

Buenaventura and Marcelina (Martina) both surnamed Guerra filed an opposition on July 18, 1966 and an amended opposition on August 19, 1967, to the petition alleging among others that they are the legally adopted son and daughter of the late spouses Florentino Guerra and Eugenia Danila (Exhibit 1); that the purported will and codicil subject of the petition (Exhibits H and L) were procured through fraud and undue influence; that the formalities requited by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix; that the late Eugenia Danila had already executed on November 5, 1951 her last will and testament (Exhibit 3) which was duly probated (Exhibit 4) and not revoked or annulled during the lifetime of the testatrix, and that the petitioner is not competent and qualified to act as administration of the estate. On November 4, 1968, the petitioner and the oppositors, assisted by their respective counsels, entered into a Compromise Agreement with the following terms and conditions, thus:

1. That oppositors Buenaventura Guerra and Marcelina (Martina) Guerra are the legally adopted son and daughter, respectively, of the deceased spouses, Florentino Guerra and Eugenia Manila; 2. That Florentino Guerra pre-deceased Eugenia Danila that Eugenia Danila died on May 21, 1966, at San Pablo City, but during her lifetime, she had already sold, donated or disposed of all her properties, some of which to Marcelina Martina Guerra, as indicated and confirmed in paragraph 13 of the Complaint in Civil Case No. SP620, entitled Marcelina Guerra versus Adelaida Nista, et al., and Which We hereby 'likewise admit and confirm; 3. That, however, with respect to the parcel of riceland covered by TCT No. T-5559 of the Register of Deeds of San Pablo City, which oppositors believe to be the estate left and undisposed of at the time of the death of the owner thereof, Eugenia Danila it now appears that there is a Deed of Donation covering the same together with another parcel of coconut land situated at Barrio San Ignacio, San Pablo City, with an area of 19,905 sq.m., and covered by Tax Declaration No. 31286, executed by the late Eugenia Danila in favor of Adelaida Nista, as per Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of Notary Public Pio Aquino of San Pablo city; 4. That inasmuch as the above-mentioned parcel of coconut and has been earlier donated inter vivos and validly conveyed on November 15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as shown by Doc. No. 237, Page No. 49, Series of 1965, under Notarial Register XV of Notary Public Atty. Romulo S. Brion of San Pablo City, the

of 16 24inclusion of said parcel in the subsequent donation to Adelaida Nista is admittedly considered a mistake and of no force and effect and will in no way prejudice the ownership and right of Marcelina Martina Guerra over the said parcel; that as a matter of fact Whatever rights and interests Adelaida Nista has or may still have thereon are already considered waived and renounced in favor of Marcelina Martina Guerra;

5. That in view of the fact that the riceland mentioned in paragraph 3 of the foregoing appears to have already been disposed of by Eugenia Danila in favor of petitioner Adelaida Nista which the parties hereto do not now contest, there is therefore no more estate left by the said deceased Eugenia Danila to he disposed of by the will sought to be probated in this proceedings; that consequently, and for the sake of peace and harmony money among the relations and kins and adopted children of the deceased Eugenia Danila and with the further aim of settling differences among themselves, the will and codicil of Eugenia Danila submitted to this Honorable Court by the petitioner for probate, are considered abrogated and set aside;

6. That as the late Eugenia Danila has incurred debts to private persons during her lifetime, which in addition to the burial and incidental expenses amounts to SIX THOUSAND EIGHT HUNDRED PESOS (P6,800.00) her adopted daughter, Marcelina (Martina) Guerra is now determined to settle the same, but herein petitioner Adelaida Nista hereby agrees to contribute to Marcelina (Martina) Guerra for the settlement of the said indebtedness in the amount of THREE THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine Currency, the same to be delivered by Adelaida Nista to Marcelina (Martina) Guerra at the latter's residence at Rizal Avenue, San Pablo City, on or about February 28, 1969;

7. That should there be any other property of the deceased Eugenia Danila that may later on be discovered to be undisposed of as yet by Eugenia Danila during her lifetime, the same should be considered as exclusive property of her adopted children and heirs, Buenaventura Guerra and Marcelina (Martina) Guerra and any right of the petitioner and signatories hereto, with respect to said property or properties, shall be deemed waived and renounced in favor of said Buenaventura and Marcelina (Martina) Guerra; and

8. That with the exception of the foregoing agreement, parties hereto waived and renounce further claim against each other, and the above-entitled case. (Exh. 6)

This Agreement was approved by the lower court in a judgment readings as follows:

WHEREFORE, said compromise agreement, being not contrary to public policy, law and moral, the same is hereby approved and judgment is hereby rendered in accordance with the terms and conditions set forth in the above- quoted compromise agreement, which is hereby made an integral part of the dispositive portion of this decision, and the parties are strictly enjoined to comply with the same. (Exh. 7)

On November 16, 1968, Rosario de Ramos, Miguel Danila Felix Danila Miguel Gavino Amor Danila Consolacion Santos and Miguel Danila son of the late Fortunato Danila filed a motion for leave to intervene as co-petitioners alleging that being instituted heirs or devisees, they have rights and interests to protect in the estate of the late Eugenia Danila They also filed a reply partly admitting and denying the material allegations in the opposition to the petition and alleging among other things, that oppositors repudiated their institution as heirs and executors when they failed to cause the recording in the Register of Deeds of San Pablo City the will and testament dated November 5, 1951 (Exhibit 3) in accordance with the Rules and committed acts of ingratitude when they abandoned the testatrix and denied her support after they managed, through fraud and undue influence, to secure the schedule of partition dated January 15, 1962. The Intervenors prayed for the probate and/or allowance of the will and codicil (Exhibits H and L), respectively and the appointment of any of them in as administrator of said estate.

On December 6, 1968, the intervenors also filed a motion for new trial and/or re-hearing and/or relief from judgment and to set aside the judgment based on compromise dated November 5, 1968. The oppositors interposed an opposition to the motion to which the intervenors filed their reply. The lower court resolved the motions in an order the dispositive portion reading, thus:

FOR ALL THE FOREGOING the Court hereby makes the following dispositions

Movants Rosario de Ramos, Miguel C. Danila Miguela Gavino Amor Danila Consolacion Santos, Miguel A. Danila and Raymundo Danila are allowed and admitted to intervene to this proceeding as Party Petitioners; and likewise admitted in their reply to the amended opposition of November 11, 1968;

(2) The compromise agreement dated October 15, 1968 by and between Petitioner Adelaida Nista and oppositors Buenaventura Guerra and Marcelina Guerra Martina is disapproved, except as regards their respective lawful rights in the subject estate; and, accordingly, the judgment on compromise rendered by this Court on November 5, 1968 is reconsidered and set aside; and

(3) The original Petition and amended opposition to probate of the alleged will and codicil stand. xxx xxx xxx The lower court also denied the motion for the appointment of a special administrator filed by the intervenors. xxx xxx xxx A motion for reconsideration of the foregoing order was filed by the intervenors co-petitioners but the motion was denied. xxx xxx xxx

of 17 24On February 9, 1971, a motion for the substitution of Irene, Crispina, Cristina Casiano, Edilberto Felisa, Guerra in place of their father, the oppositor Buenaventura Guerra who died on January 23, 1971, was filed and granted by the lower court.

After trial on the merits, the lower court rendered its decision dated July 6, 1971 allowing the probate of the wilt In that decision, although two of the attesting witness Odon Sarmiento and Rosendo Paz, testified that they did not see the testatrix Eugenia Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court gave more weight and ment to the .'straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who assisted in the execution of the wilt that the testatrix and the three (3) instrumental witnesses signed the will in the presence of each other, and that with respect to the codicil the same manner was likewise observed as corroborated to by the testimony of another lawyer, Atty. Manuel Alvero who was also present during the execution of the codicil. The dispositive portion of the decision reads:

WHEREFORE, it appearing that the late Eugenia Danila had testamentary capacity when she executed the will, Exh. H., and the codicil Exh. L, and that said will and codicil were duly signed by her and the three attesting witnesses and acknowledged before a Notary Public in accordance with the formalities prescribed by law, the said will and codicil are hereby declared probated. No evidence having been adduced regarding the qualification and fitness of any of the intervenors- co-petitioners to act as executors, the appointment of executors of the will and codicil is held pending until after due hearing on the matter.

SO ORDERED.

Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the foregoing decision to the Court of Appeals The latter court, in its derision dated May 12, 1975 ruled that the lower court acted correctly in setting aside its judgment approving the Compromise Agreement and in allowing the intervenor petitioners to participate in the instant probate proceedings; however, it disallowed the probate of the will on the that the evidence failed to establish that the testatrix Eugenia Danila signed her will in the presence of the instrumental witness in accordance with Article 805 of the Civil Code, as testified to by the two surviving instrumental witnesses.

In this present appeal petitioners vigorously insists on constitutional grounds the nullity of the decision of respondent court but We deem it needless to consider the same as it is not necessary in resolving this appeal on the following assigned errors:

(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN WEIGHT TO THE MANIFESTATION CLAUSES IN THE TESTAMENT AND CODICIL ANNEX B (PETITION) AND INSTEAD IT GAVE CREDENCE TO THE TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL ACKNOWLEDGEMENT OF THE NOTARY PUBLIC; AND (B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING EVIDENCE FOR THEIR ALLOWANCE.

We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in question. The main point in controversy here is whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary.

Petitioners argue that the attestation clauses of the win and codicil which were signed by the instrumental witnesses are admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against due execution. Petitioners further maintain that it is error for respondent court to give credence to the testimony of the biased witnesses as against their own attestation to the fact of due execution and over the testimonial account of the Notary Public who was also present during the execution and before whom right after, the deeds were acknowledged. Private respondents, on the other hand reiterate in their contention the declaration of the two surviving witnesses, Odon Sarmiento and Rosendo Paz, that the win was not signed by the testatrix before their presence, which is strengthened by two photographic evidence showing only the two witnesses in the act of signing, t