THIRD DIVISION G.R. No. 122880 April 12, 2006 FELIX AZUELA, Petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted 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. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. 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 three defects is just aching for judicial rejection. There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills � that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento: Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali�t at kondiciones;
Transcript
THIRD DIVISION
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner, vs.COURT OF APPEALS, GERALDA AIDA CASTILLO substituted 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. In refusing to give legal recognition to the due execution of this document, the Court is provided theopportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
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 three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills � that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questionsas to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali�t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa�t dahon, sa harap ng lahat at bawa�t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa�t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa�t dahon ng kasulatan ito.
EUGENIA E. IGSOLO address: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.
QUIRINO AGRAVA address: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO address: Avenue 2, Blcok 7,Lot 61, San Gabriel, G.MA., Cavite Res.Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA address: City Court Compound,City of Manila Res. Cert. No. A574829Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKOPage No. 86 ; Until Dec. 31, 1981Book No. 43 ; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor againstpetitioner, particularly for forcible entry and usurpation of real property, all centering
on petitioner�s right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, itwas subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent�s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor�s arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretationof the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title,"Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ngHunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa�t dahon, sa harap ng lahat at bawa�t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa�t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa�t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law.
On the oppositor�s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing bythe subscribing witnesses on the left margin of the second page of the will containing theattestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositor�s argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages.The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor�s assertion that the signature of the testatrix on the will is aforgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals 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.10
Hence, the present petition.
Petitioner 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."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereofby 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 lettersplaced 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 instrumentalwitnesses, 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.
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.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages.If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that theattestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the 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 Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state thenumber of pages used in the will, however, the same was found in the last part of the bodyof the Will:
"x x x
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 sheetsupon which the will 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. Gorcho, 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 thewill 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." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will 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 whilethe 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" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in anypart of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, consideringthat the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "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."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "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. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictionsto prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary 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 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 notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another�s presence should beconsidered a fatal flaw since the attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring theclause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increaseor decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation inSingson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator�s incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. 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 which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestationclause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 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 [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. 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. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses� undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses� signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number ofpages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition shouldalso hinge. The requirement under Article 806 that "every will must be acknowledged beforea notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated fromthe other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko atninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplationcan those words be construed as an acknowledgment. An acknowledgment is the act of one whohas executed a deed in going before some competent officer or court and declaring it to behis act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that thesame is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifiesthat before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a
will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44
of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners, vs.THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA, ESTRELLA M. CAÑETE, LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C. NATIVIDAD namely, OSCARC. NATIVIDAD, OLGA NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD, RICHARD NATIVIDAD, RAYMUND NATIVIDAD, RICHIE NATIVIDAD, SONIA NATIVIDAD and ENCARNACION CABATINGAN VDA. DE TRINIDAD, ALFREDO CABATINGAN and JESUSA C. NAVADA, respondents.
AUSTRIA-MARTINEZ, J.:
Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is the sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa.
The facts of the case are as follows:
On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a "Deed of Conditional of Donation (sic) Inter Vivos for House and Lot"covering one-half (�) portion of the former's house and lot located at Cot-cot, Liloan, Cebu.1 Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land - one located in Cogon, Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a portion of the Masbate property (80,000 sq. m.).2 These deeds of donation contain similar provisions, to wit:
"That for and in consideration of the love and affection of the DONOR for the DONEE,x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; x x x"3 (Emphasis Ours)
On May 9, 1995, Conchita Cabatingan died.
Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue, Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as Civil Case No. MAN-2599, seekingthe annulment of said four (4) deeds of donation executed on January 14, 1995. Respondentsallege, inter alia, that petitioners, through their sinister machinations and strategies and taking advantage of Conchita Cabatingan's fragile condition, caused the execution of the deeds of donation, and, that the documents are void for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa.4 Respondents prayed that a receiver be appointed in order to preserve the disputed properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas Cabatingan.5
Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita Cabatingan freely, knowingly and voluntarily caused the preparation of the instruments.6
On respondents' motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of respondents, with the following dispositive portion:
"WHEREREFORE, and in consideration of all the foregoing, judgment is hereby renderedin favor of the plaintiffs and against the defendant and unwilling co-plaintiff withregards (sic) to the four Deeds of Donation Annexes "A", "A-1", "B" and Annex "C" which is the subject of this partial decision by:
Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa and forfailure to comply with formal and solemn requisite under Art. 806 of the New Civil Code;
b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the deceased Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this partial decision,as mandated under Art. 777 of the New Civil Code;
SO ORDERED."7
The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed on January 14, 1995 are null and void for failure to complywith the requisites of Article 806 of the Civil Code on solemnities of wills and testaments.8
Raising questions of law, petitioners elevated the court a quo's decision to this Court,9 alleging that:
"THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED RULINGS OF THIS HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF DONATIONS AS INTER VIVOS OR MORTIS CAUSA AND, INSTEAD, PROCEEDED TO INTERPRET THE DONATIONS IN QUESTION IN A MANNER CONTRARY THERETO."10
Petitioners insist that the donations are inter vivos donations as these were made by the late Conchita Cabatingan "in consideration of the love and affection of the donor" for thedonee, and there is nothing in the deeds which indicate that the donations were made in consideration of Cabatingan's death.11 In addition, petitioners contend that the stipulation on rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.
Petitioners' arguments are bereft of merit.
In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive."12 In determining whether a donation is one of mortis causa, the following characteristics must be taken into account:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain theownership (full or naked) and control of the property while alive;
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;
and
(3) That the transfer should be void if the transferor should survive the transferee.13
In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death.14 The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of donation, to wit:
"That the DONEE does hereby accept the foregoing donation mortis causa under the terms and conditions set forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity of the DONOR."
x x x
"SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which consists of two (2) pages x x x."15
That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations as inter vivos because transfers mortis causa may also be made for the same reason.16
Well in point is National Treasurer of the Phils. v. Vda. de Meimban.17 In said case, the questioned donation contained the provision:
"That for and in consideration of the love and affection which the DONOR has for theDONEE, the said Donor by these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ONE HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the above described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan Subdivision
of Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become effective upon the death of the DONOR. (italics supplied.)"18
Notably, the foregoing provision is similar to that contained in the donation executed by Cabatingan. We held in Meimban case that the donation is a mortis causa donation, and that the above quoted provision establishes the donor's intention to transfer the ownership andpossession of the donated property to the donee only after the former's death. Further:
"As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been complied with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no effect. As we have held in Alejandro v. Geraldez (78 SCRA 245,253), "If the donation is made in contemplation of the donor's death, meaning that the full or naked ownership of the donated properties will pass to the donee because of the donor's death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament. (Citing Bonsato v. Court of Appeals, 95 Phil. 481)."19
We apply the above rulings to the present case. The herein subject deeds expressly providethat the donation shall be rescinded in case petitioners predecease Conchita Cabatingan. As stated in Reyes v. Mosqueda,20 one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated be transferred to the donee or independently of, and not by reason of her death, she would have not expressed such proviso in the subject deeds.1�wphi1.n�t
Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary provisions21 and as such, said deeds must be executed in accordancewith the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code, to wit:
"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 bythree 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 thewill 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 andthe 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)"
The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not executed in the manner provided for under the above-quoted provisions of law.
Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.
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EN BANC[G.R. No. L-18979. June 30, 1964.]IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO ICASIANO,
petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.Jose W. Diokno for petitioner-appellee.Rosendo J. Tansinsin for oppositor-appellant Natividad Icasiano.Jaime R. Nuevas for oppositor-appellant Enriquez Icasiano.D E C I S I O NREYES, J.B.L., J p:
Appeal from an order of the Court of First Instance of Manila admitting to probatethe document and its duplicate, marked as Exhibits "A" and "A-1", as the true last willand testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano,the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowanceand admission to probate of the original, Exhibit "A" as the alleged will of JosefaVillacorte, deceased, and for the appointment of petitioner Celso Icasiano as executorthereof.
The court set the proving of the alleged will for November 8, 1958, and causednotice thereof to be published for three (3) successive weeks, previous to the timeappointed, in the newspaper "Manila Chronicle", and also caused personal service of copiesthereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed heropposition; and on November 10, 1958, she petitioned to have herself appointed as aspecial administrator, to which proponent objected. Hence, on November 18, 1958, the courtissued an order appointing the Philippine Trust Company as special administrator.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed amanifestation adopting as his own Natividad's opposition to the probate of the allegedwill.
On March 19, 1959, the petitioner proponent commenced the introduction of hisevidence; but on June 1, 1959, he filed a motion for the admission of an amended andsupplemental petition, alleging that the decedent left a will executed in duplicate withall the legal requirements, and that he was, on that date, submitting the signed duplicate(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959,oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint oppositionto 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 filedher amended opposition. Thereafter, the parties presented their respective evidence, andafter several hearings the court issued the order admitting the will and its duplicate toprobate. From this order, the oppositors appealed directly to this Court, the amountinvolved being over P200,000.00, on the ground that the same is contrary to law and theevidence.
The evidence presented for the petitioner is to the effect that Josefa Villacortedied in the City of Manila on September 12, 1958; that on June 2, 1956, the late JosefaVillacorte executed a last will and testament in duplicate at the house of her daughterMrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested bythree instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V.Natividad, and Dr. Vinicio B. Diy; that the will was acknowledged by the testatrix and bythe said three instrumental witnesses on the same date before attorney Jose Oyengco Ong,Notary Public in and for the City of Manila; and that the will was actually prepared byattorney Fermin Samson, who was also present during the execution and signing of thedecedent's last will and testament, together with former Governor Emilio Rustia ofBulacan, Judge Ramon Icasiano, and a little girl. Of the said three instrumental witnessesto the execution of the decedent's last will and testament attorneys Torres and Natividadwere in the Philippines at the time of the hearing, and both testified as to the dueexecution and authenticity of the said will. So did the Notary Public before whom the willwas acknowledged by the testatrix and attesting witnesses, and also attorney FerminSamson, who actually prepared the document. The latter also testified upon crossexamination that he prepared one original and two copies of Josefa Villacorte's last willand testament at his house in Baliuag, Bulacan, but he brought only one original and onesigned copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneouslywith the filing of the petition and marked as Exhibit "A", consists of five pages, andwhile signed at the end and in every page, it does not contain the signature of one of theattesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicatecopy attached to the amended and supplemental petition and marked as Exhibit "A-1" issigned by the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that theoriginal of the will and its duplicate were subscribed at the end and on the left marginof each and every page thereof by the testatrix herself and attested and subscribed by thethree mentioned witnesses in the testatrix's presence and in that of one another aswitnesses (except for the missing signature of attorney Natividad on page three (3) of theoriginal; that pages of the original and duplicate of said will were duly numbered; that
the attestation clause thereof contains all the facts required by law to be recitedtherein and is signed by the aforesaid attesting witnesses; that the will is written inthe language known to and spoken by the testatrix; that the attestation clause is in alanguage also known to and spoken by the witnesses; that the will was executed on onesingle occasion in duplicate copies; and that both the original and the duplicate copywere duly acknowledged before Notary Public Jose Oyengco Ong of Manila on the same date —June 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of theoriginal, admits that he may have lifted two pages instead of one when he signed the same,but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that thesignatures of the testatrix in the duplicate (Exhibit A-1) are not genuine, nor were theywritten or affixed on the same occasion as the original, and further aver that grantingthat the documents were genuine, they were executed through mistake and with undueinfluence and pressure because the testatrix was deceived into adopting as her last willand testament the wishes of those who will stand to benefit from the provisions of thewill, as may be inferred from the facts and circumstances surrounding the execution of thewill and the provisions and dispositions thereof, whereby proponents- appellees stand toprofit from properties held by them as attorneys- in-fact of the deceased and notenumerated or mentioned therein, while oppositors-appellants are enjoined not to look forother properties not mentioned in the will, and not to oppose the probate of it, onpenalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that thetestatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively)of the will spontaneously, on the same occasion, in the presence of the three attestingwitnesses, the notary public who acknowledged the will, and Atty. Samson, who actuallyprepared the documents; that the will and its duplicate were executed in Tagalog, alanguage known to and spoken by both the testator and the witnesses, and read to and bythe testatrix and Atty. Fermin Samson together before they were actually signed; that theattestation clause is also in a language known to and spoken by the testatrix and thewitnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures ofthe testatrix appealing in the duplicate original were not written by the same hand, whichwrote the signatures in the original will leaves us unconvinced, not merely because it isdirectly contradicted by expert Martin Ramos for the proponents, but principally becauseof the paucity of the standards used by him to support the conclusion that the differencesbetween the standard and questioned signatures are beyond the writer's range of normalscriptural variation. The expert has, in fact, used as standards only three othersignatures of the testatrix besides those affixed to the original of the testament (Exh.A); and we feel that with so few standards the expert's opinion that the signatures in theduplicate could not be those of the testatrix becomes extremely hazardous. This isparticularly so since the comparison charts Nos. 3 and 4 fail to show convincingly thatthere are radical differences that would justify the charge of forgery, taking intoaccount the advanced age of the testatrix, the evident variability of her signatures, andthe effect of writing fatigue, the duplicate being signed right after the original. Thesefactors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted andquestioned signatures does not appear reliable, considering that standard and challengedwritings were affixed to different kinds of paper, with different surfaces and reflectingpower. On the whole, therefore, we do not find the testimony of the oppositor's expertsufficient to overcome that of the notary and the two instrumental witnesses, Torres andNatividad (Dr. Diy, being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that someheirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27;Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 216). Diversity ofapportionment is the usual reason for making a testament; otherwise, the decedent might aswell die intestate. The testamentary disposition that the heirs should not inquire intoother property and that they should respect the distribution made in the will, underpenalty of forfeiture of their shares in the free part, do not suffice to prove fraud orundue influence. They appear motivated by the desire to prevent prolonged litigationwhich, as shown by ordinary experience, often results in a sizeable portion of the estatebeing diverted into the hands of non- heirs and speculators. Whether these clauses arevalid or not is a matter to be litigated on another occasion. It is also well to notethat, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant and exclude each other; their joining asgrounds for opposing probate shows absence of definite evidence against the validity ofthe will.
On the question of law, we hold that the inadvertent failure of one witness to affixhis signature to one page of a testament, due to the simultaneous lifting of two pages inthe course of signing, is not per se sufficient to justify denial of probate.Impossibility of substitution of this page is assured not only the fact that the testatrixand two other witnesses did sign the defective page, but also by its bearing thecoincident imprint of the seal of the notary public before whom the testament was ratifiedby testatrix and all three witnesses. The law should not be so strictly and literallyinterpreted as to penalize the testatrix on account of the inadvertence of a singlewitness over whose conduct she had no control, where the purpose of the law to guaranteethe identity of the testament and its component pages is sufficiently attained, nointentional or deliberate deviation existed, and the evidence on record attests to thefull observance of the statutory requisites. Otherwise, as stated in Vda. de Gil vs.Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)"witnesses may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely throughpure oversight is shown by his own testimony as well as by the duplicate copy of the will,which bears a complete set of signatures in every page. The text of the attestation clauseand the acknowledgment before the Notary Public likewise evidence that no one was aware ofthe defect at the time.
This would not be the first time that this Court departs from a strict and literalapplication of the statutory requirements, where the purposes of the law are otherwisesatisfied. Thus, despite the literal tenor of the law, this Court has held that atestament, with the only page signed at its foot by testator and witnesses, but not in theleft margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and thatdespite the requirement for the correlative lettering of the pages of a will, the failureto mark the first page either by letters or numbers is not a fatal defect (Lopez vs.Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to requiresatisfaction of the legal requirements in order to guard against fraud and bad faith butwithout undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence andavailable, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probateof the original because it lacked one signature in its third page, it is easily discernedthat oppositors-appellants run here into a dilemma: if the original is defective andinvalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then theobjection to the signed duplicate need not be considered, being superfluous andirrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission ofone signature in the third page of the original testament was inadvertent and notintentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a newpublication does not affect the jurisdiction of the probate court, already conferred bythe original publication of the petition for probate. The amended petition did notsubstantially alter the one first filed, but merely supplemented it by disclosing theexistence of the duplicate, and no showing is made that new interests were involved (thecontents of Exhibit A and A-1 are admittedly identical); and appellants were duly notifiedof the proposed amendment. It is nowhere proved or claimed that the amendment deprived theappellants of any substantial right, and we see no error in admitting the amendedpetition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs againstappellants.
EN BANC[G.R. No. 6285. February 15, 1912.]PEDRO BARUT, petitioner-appellant, vs. FAUSTINO CABACUNGAN ET AL., opponents-
appellees.A. M. Jimenez, for appellant.Ramon Querubin, for appellees.D E C I S I O NMORELAND, J p:This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut
and another, No. 6284, 1 just decided by this court, wherein there was an application forthe probate of an alleged last will and testament of the same person the probate of whosewill is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate thelast will and testament of Maria Salomon, deceased. It is alleged in the petition forprobate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait,Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan,Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses tothe execution thereof. By the terms of said will Pedro Barut received the larger part ofdecedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Itstranslation into Spanish appears at page 11. After disposing of her property the testatrixrevoked all former wills by her made. She also stated in said will that being unable toread or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoseldaand that she had instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives ofthe deceased on various grounds, among them that a later will had been executed by thedeceased. The will referred to as being a later will is the one involved in case No. 6284already referred to. Proceedings for the probate of this later will were pending at thetime. The evidence of the proponents and of the opponents was taken by the court in bothcases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitledto probate upon the sole ground that the handwriting of the person who it is allegedsigned the name of the testatrix to the will for and on her behalf looked more like thehandwriting of one of the other witnesses to the will than that of the person whosehandwriting it was alleged to be. We do not believe that the mere dissimilarity in writingthus mentioned by the court is sufficient to overcome the uncontradicted testimony of allthe witnesses to the will that the signature of the testatrix was written by Severo Agayanat her request and in her presence and in the presence of all of the witnesses to thewill. It is immaterial who writes the name of the testatrix provided it is written at herrequest and in her presence and in the presence of all the witnesses to the execution ofthe will.
The court seems, by inference at least, to have had in mind that under the lawrelating to the execution of a will it is necessary that the person who signs the name ofthe testatrix must afterwards sign his own name; and that, in view of the fact that, inthe case at bar, the name signed below that of the testatrix as the person who signed hername, being, from its appearance, not the same hand-writing as that constituting the nameof the testatrix, the will is accordingly invalid, such fact indicating that the personwho signed the name of the testatrix failed to sign his own. We do not believe that thiscontention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:
"No will, except as provided in the preceding section, shall be valid to pass anyestate, real or personal, nor charge or affect the same, unless it be in writing andsigned by the testator, or by the testator's name written by some other person in hispresence, and by his express direction, and attested and subscribed by three or morecredible witnesses in the presence of the testator and of each other. . . ."
This is the important part of the section under the terms of which the court holdsthat the person who signs the name of the testator for him must also sign his own name.The remainder of the section reads:
"The attestation shall state the fact that the testator signed the will, or causedit to be signed by some other person, at his express direction, in the presence of threewitnesses, and that they attested and subscribed it in his presence and in the presence ofeach other. But the absence of such form of attestation shall not render the will invalid
if it is proven that the will was in fact signed and attested as in this sectionprovided."
From these provisions it is entirely clear that, with respect to the validity of thewill, it is unimportant whether the person who writes the name of the testatrix signs hisown or not. The important thing is that it clearly appears that the name of the testatrixwas signed at her express direction in the presence of three witnesses and that theyattested and subscribed it in her presence and in the presence of each other. That is allthe statute requires. It may be wise as a practical matter that the one who signs thetestator's name signs also his own; but that is not essential to the validity of the will.Whether one person or another signed the name of the testatrix in this case is absolutelyunimportant so far as the validity of her will is concerned. The plain wording of thestatute shows that the requirement laid down by the trial court, if it did lay it down, isabsolutely unnecessary under the law; and the reasons underlying the provisions of thestatute relating to the execution of wills do not in any sense require such a provision.From the standpoint of language it is an impossibility to draw from the words of the lawthe inference that the person who signs the name of the testator must sign his own namealso. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a personwho is unable to write may be signed by another by express direction to any instrumentknown to the law. There is no necessity whatever, so far as the validity of the instrumentis concerned, for the person who writes the name of the principal in the document to signhis own name also. As a matter of policy it may be wise that he do so inasmuch as it wouldgive such intimation as would enable a person proving the document to demonstrate morereadily the execution by the principal. But as a matter of essential validity of thedocument, it is unnecessary. The main thing to be established in the execution of the willis the signature of the testator. If that signature is proved, whether it be written byhimself or by another at his request, it is none the less valid, and the fact of suchsignature can be proved as perfectly and completely when the person signing for theprincipal omits to sign his own name as it can when he actually signs. To hold a willinvalid for the lack of the signature of the person signing the name of the principal is,in the particular case, a complete subrogation of the law of wills, as it rejects anddestroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to thedoctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692),Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion (Phil. Rep., 551). Not oneof these cases is in point.
The headnote in the case last above stated gives an indication of what all of thecases are and the question involved in each one of them. It says:
"The testatrix was not able to sign her name to the will, and she requested anotherperson to sign it for her. Instead of writing her name he wrote his own upon the will.Held, That the will was not duly executed."
All of the above cases are precisely of this character. Every one of them was a casein which the person who signed the will for the testator wrote his own name to the willinstead of writing that of the testator, so that the testator's name nowhere appearedattached to the will as the one who executed it. The case of Ex parte Arcenas contains thefollowing paragraph:
"Where a testator does not know how, or is unable for any reason, to sign the willhimself, it shall be signed in the following manner: 'John Doe, by the testator, RichardRoe ;' or in this form: 'By the testator. John Doe, Richard Roe.' All this must be writtenby the witness signing at the request of the testator."
The only question for decision in that case, as we have before stated, was presentedby the fact that the person who was authorized to sign the name of the testator to thewill actually failed to sign such name but instead signed his own thereto. The decision inthat case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in thiscase have set forth no reason whatever why the will involved in the present litigationshould not be probated. The due and legal execution of the will by the testatrix isclearly established by the proofs in this case. Upon the facts, therefore, the will mustbe probated. As to the defense of a subsequent will, that is resolved in case No. 6284 ofwhich we have already spoken. We there held that said later will was not the will of thedeceased.
The judgment of the probate court must be and is hereby reversed and that court isdirected to enter an order in the usual form probating the will involved in thislitigation and to proceed with such probate in accordance with law.
EN BANC
G.R. No. L-20475 March 19, 1924
In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-appellant.
C.K. Langleon for petitioner and appellant.
ARAULLO, C.J.:
On March 3, 1921, Mamerta Base instituted this proceeding in the Court of First Instance of Leyte for the probate of the will, Exhibit A, executed, according to her, by the Chinaman Tan Diuco, a resident of the municipality of Malitbog of said province, who died on December 8, 1920. That court denied the probate of the will on November 2, 1922, and the petitioner brought the case on appeal to this court, alleging that the lower court erred in holding that said will was not signed by three instrumental witnesses and in not allowing it to probate.
After a hearing on the petition, the Court of First Instance entered the order appealed from, in which it is found that said will was executed with all the solemnities prescribedby Act No. 2645, except that it was not signed by three instrumental witnesses beside the signature of the testator and before the attestation clause, and this fact is the ground upon which the petition was denied.
The document in question, Exhibit A, appears to have been signed by Simplicio Sala by order of the testator, whose name is before the said signature, by reason of the latter's incapacity on account of his weakness and the trembling of his hand, the testator also stating that he directed said Simplicio Sala to sign it in his name and in the presence ofthree witnesses who also signed with him at the bottom of said document, and on the left margin of each of its three pages correlatively numbered in letters by Sala in the name ofthe testator Tan Diuco and by the witnesses therein mentioned, named Pablo Maturan, Ladislao Fenomeno, and Enrique Peñaredondo. After the signature of the testator, Tan Diucoby Simplicio Sala, the following paragraph appears:
We, the undersigned witnesses to the forgoing will, do hereby state that the testator signed this will and each of its sheets in the presence of all and each of us, and we and each of us likewise did sign this will and all of its sheets in the presence of the testator and each of us, witnesses.
"TAN DIUCOBy "SIMPLICIO SALA"LADISLAO FENOMENO
"PABLO MATURAN"ENRIQUE PEÑAREDONDO"
Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, provides, indeed, among the necessary requirements before a will can be probated, that it be attested and signed by three or more credible witnesses in the presence of the testator and of each other. And said section, as amended, further provides as follows:
* * * 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, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and that 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 three witnesses, andthe latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other.
Instrumental witness, as defined by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, volume 4, page 1115, is one who takes part in the execution of an instrument or writing.
At present and under the laws now in force, particularly Act No. 2645 amendatory to said section 618 of the Code of Civil Procedure, when a will is to be executed, the testator draws or writes it personally or through another person and signs it also personally, or
if he is physically incapacitated, as in the instant case, through another person who may or may not be the one who prepared or wrote the will, that is, the document constituting the testator's last will and testament. The will having thus been prepared and before it is signed by the testator or the person acting in his stead, or the one directed by him tosign it in his name, in which case the name of the testator is written before that of the signer, as above stated, in order that said document may have the character of a valid will, the testator gathers three or more credible witnesses and tells them that the contents of said document is his will, without informing them of its contents, and then the testator, or the person directed by him to do so, signs it in the presence of the testator and of each other, and the testator or the person acting in his stead, as well asthe three witnesses sign on the left margin of each page or sheet, which must be numbered correlatively in letters on the upper part of the page. These witnesses are the witnesses,referred to in the aforesaid law as instrumental witnesses, for the simple reason that they took part in the execution of an instrument or document known as will, their participation being limited to the acts aforementioned.
In dealing with attestation, said section 618 of the Code of Civil Procedure, as amended by Act No. 2645, does not say that said witnesses must be different from those who signed the attestation clause, for in the first part of said section, after speaking of the signature of the testator or the person signing in his place, it adds, "and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other," from which it clearly follows that the same witnesses who signed on the left margin of each page of the document presented by the testator to them as his will, must be the ones who should sign the attestation clause, inasmuch as they alone can certify the facts to be stated in said clause, for having taken a direct part therein, as they saw the testator sign the will, orthe person requested by him to sign all the sheets of the will, that is, the document constituting his last will and testament, and affirm that it was signed under his express direction in the presence of said witnesses and that all the sheets thereof had also been signed by them in the presence of said testator and of each of them, as stated in the attestation clause of the will of the deceased Tan Diuco, with the other details appropriate in said clause.
Besides, as may be seen, the said three witnesses who signed the attestation clause, did so also on the left margin and beside the signature of the testator or of Simplicio Sala who signed by order of the latter, and if account is taken of the fact that these witnesses are "instrumental" witnesses, as above demonstrated, and they have made reference to their own signatures, as well as that of the testator and of the person who signed by the latter's order below the attestation clause, it is evident that in the instant case, it is merely a matter of technicality devoid of any importance as to the probate of the will that said witnesses are called instrumental witnesses, as if they weredifferent from those who have to sign the attestation clause, for all of them are but the same witnesses; and, as this court held in the case of Abangan vs. Abangan (40 Phil., 476), "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, alsoone must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when a interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands morerequisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded;" which doctrine must be applied in this case, in view of the facts herein mentioned and what has been above demonstrated.
For all of the foregoing, the order appealed from is reversed, and the document, Exhibit A, presented by the proponent as the last will and testament of the deceased Tan Diuco is admitted to probate, without special finding as to costs of both instances. So ordered.
Vicente Llanes for appellant.Severo Hernando for appellee.
CARSON, J.:
The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed hercosts against her name, attached by some other person to the instrument offered for probate which purports to be her last will and testament, in the presence of three witnesses whose names are attached to the attesting clause, and that they attested and subscribed the instrument in her presence and in the presence of each other.
We are of the opinion that the placing of the cross opposite her name at the construction of the instrument was a sufficient compliance with the requirements of section 618 of the Code of Civil Procedure, which prescribes that except where wills are signed by some otherperson than the testator in the manner and from herein indicated, a valid will must be signed by the testator. The right of a testator to sign his will by mark, executed animo testandi has been uniformly sustained by the courts of last resort of the United States in construing statutory provisions prescribing the mode of execution of wills in language identical with, or substantially similar to that found in section 618 of our code, which was taken from section 2349 of the Code of Vermont. (Page on Wills, par. 173, and the cases there cited in support of the doctrine just announced.)
The trial judge was of contrary opinion, and declined to admit the instrument to probate as the last will and testament of the decedent. We are of opinion, however, that the evidence of record satisfactorily establishes the execution of that instrument as and for her last will and testament in the manner and form prescribed by law.
The judgment entered in the court below should therefore be reversed, without costs in this instance, and the record remanded to the court below, where judgment will be entered admitting the instrument in question to probate in accordance with the prayer of the petitioner. So ordered.
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EN BANC[G.R. No. L-4067. November 29, 1951.]In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs. JULIANA LACUESTA, ET AL., respondents.Elviro L. Peralta and Hermenegildo A. Prieto, for petitioner.Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.D E C I S I O NPARAS, C.J p:This is an appeal from a decision of the Court of Appeals disallowing the will of
Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect andcontains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament ofAntero Mercado was signed by himself and also by us below his name and of this attestationclause and that of the left margin of the three pages thereof. Page three the continuationof this attestation clause; this will is written in Ilocano dialect which is spoken andunderstood by the testator, and it bears the corresponding number in letter which composeof three pages and all of them were signed in the presence of the testator and witnesses,and the witnesses in the presence of the testator and all and each and every one of uswitnesses.
"In testimony, whereof, we sign this testament, this the third day of January, onethousand nine hundred forty three, (1943) A.D.
The will appears to have been signed by Atty. Florentino Javier who wrote the nameof Antero Mercado, followed below by "A ruego del testador" and the name of FlorentinoJavier. Antero Mercado is alleged to have written a cross immediately after his name. TheCourt of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte,ruled that the attestation clause failed (1) to certify that the will was signed on allthe left margins of the three pages and at the end of the will by Atty. Florentino Javierat the express request of the testator in the presence of the testator and each and everyone of the witnesses; (2) to certify that after the signing of the name of the testator byAtty. Javier at the former's request said testator has written a cross at the end of hisname and on the left margin of the three pages of which the will consists and at the endthereof; (3) to certify that the three witnesses signed the will in all the pages thereonin the presence of the testator and of each other. LLphil
In our opinion, the attestation clause is fatally defective for failing to statethat Antero Mercado caused Atty. Florentino Javier to write the testator's name under hisexpress direction, as required by section 618 of the Code of Civil Procedure. The hereinpetitioner (who is appealing by way of certiorari from the decision of the Court ofAppeals) argues, however, that there is no need for such recital because the cross writtenby the testator after his name is a sufficient signature and the signature of Atty.Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much asignature as a thumbmark, the latter having been held sufficient by this Court in thecases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signatureof Antero Mercado or even one of the ways by which he signed his name. After maturereflection, we are not prepared to liken the mere sign of a cross to a thumbmark, and thereason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is asufficient recital in the attestation clause as to the signing of the will by the testatorin the presence of the witnesses, and by the latter in the presence of the testator and ofeach other.
Wherefore, the appealed decision is hereby affirmed, with costs against thepetitioner. So ordered.
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EN BANC[G.R. No. L-15153. August 31, 1960.]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 & Climaco for appellants.D E C I S I O NLABRADOR, J p: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 Courtof Appeals where the following assignment of error is made:
"The appellants respectfully submit that the Trial Court erred in holding that thesupposed testament, Exh. 'A', was signed in accordance with law; and in admitting the willto probate."
In view of the fact that the appeal involves a question of law the said court hascertified 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 byJuan 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 secondpage appears the signature of the three (3) instrumental witnesses Blas Sebastian,Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. delos Santos and below his signature is his official designation as the notary public whonotarized the said testament. On the first page on the left margin of the said instrumentalso appear the signatures of the instrumental witnesses. On the second page, which is thelast page of the 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 ofJuan Bello under whose name appears handwritten the following phrase, 'Por la TestadoraAnacleta Abellana'. The will is duly acknowledged before Notary Public, Attorney Timoteode 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 . . ., Ciudadde Zamboanga," comply with the requirements of the law prescribing the manner in which awill 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 hispresence, and by his express direction, and attested and subscribed by three or morecredible witnesses in the presence of the testator and of one another." (Emphasissupplied.)
The clause "must be subscribed at the end thereof by the testator himself or by thetestator's name written by some other person in his presence and by his expressdirection," is practically the same as the provisions of Section 618 of the Code of CivilProcedure (Act No. 190) which reads as follows:
"No will, except as provided in the preceding section shall be valid to pass anyestate, real or personal, nor charge or affect the same, unless it be in writing andsigned by the testator, or by the testator's name written by some other person in hispresence, and by his express direction, and attested and subscribed by three or morecredible witnesses in the presence of the testator and of each other. . . ." (Emphasissupplied)
Note that the old law as well as the new require that the testator himself sign thewill, or if he cannot do so, the testator's name must be written by some other person inhis presence and by his express direction. Applying this provision this Court said in thecase of Ex Parte Pedro Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section 618 of the Code of Civil Procedurethat where the testator does not know how, or is unable, to sign, it will not besufficient 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 thisrespect, was modified by section 618 above referred to, but it is necessary that thetestator's name be written by the person signing in his stead in the place where he wouldhave signed if he knew how or was able so to do, and this in the testator's presence andby his express direction; so that a will signed in a manner different than that prescribedby law shall not be valid and will not be allowed to be probated.
"Where a testator does not know how, or is unable for any reason, to sign the willhimself, it shall be signed in the following manner:
'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John Doe,Richard Roe.' All this must be written by the witness signing at the request of thetestator.
"Therefore, under the law now in force, the witness Naval A. Vidal should havewritten at the bottom of the will the full name of the testator and his own name in one ofthe forms given above. He did not do so, however, and this failure to comply with the lawis a substantial defect which affects the validity of the will and precludes itsallowance, 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. Inthe case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is thatit clearly appears that the name of the testatrix was signed at her express direction; itis unimportant whether the person who writes the name of the testatrix signs his own ornot. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489). cdphil
In the case at bar the name of the testatrix, Anacleta Abellana, does not appearwritten 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 testatormust himself sign the will, or that his name be affixed thereto by Some other person inhis presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we areconstrained to declare that the said will of the deceased Anacleta Abellana may not beadmitted to probate.
Wherefore, the decision appealed from is hereby set aside and the petition for theprobate of the will denied. With costs against petitioner.
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FIRST DIVISION[G.R. No. L-3907. March 12, 1908.]ROMAN ABAYA, petitioner-appellant, vs. DONATA ZALAMERO, respondent-appellee.L. Joaquin, for appellant.Escueta and Lim, for appellee.D E C I S I O NTORRES, J p:On the 6th of August, Roman Abaya filed a petition with the Court of First Instance
of La Laguna, for the allowance of the will executed by Juan Zalamero, a resident ofPagsanhan, in said province, on the 29th of October, 1905, and produced in court the saidwill, which was written in Tagalog dialect. Donata Zalamero opposed the petition, allegingthat the will had been executed under pressure and unlawful and improper influence on thepart of those who were to benefit thereby, and that it had not been executed and signed inaccordance with the provisions of section 618 of the Code of Civil Procedure. A day wasappointed for the hearing and in the course of the proceedings the witnesses offered byboth parties were examined; on the 10th of January, 1907, the court refused to admit thewill of said Juan Zalamero, as requested by Roman Abaya; Abaya appealed from the decisionand moved for a new trial which motion has not been finally acted upon by the court; forthis reason the petitioner, now before this court, still insists thereon for the effectsof the appeal which he had interposed, and has submitted a certified copy of theproceedings to which the assignment of errors presented by him refers.
Two points are presented. The first is, that Juan Zalamero, while in life, executedhis will on the 29th of October, 1905, under lawful pressure and influence exercised bythose who were thereby benefited; and second, that the said will was not executed andsigned in accordance with the provisions of section 618 of the Code of Civil Procedure.
After an examination of the facts alleged and the evidence adduced by both parties,and considering the case according to the rules of common sense and sound criticism, itmust necessarily be admitted that the weight and preponderance of the evidence prove in aconclusive manner the authenticity and genuineness of the said will as the real and trueexpression of the will of the testator, Juan Zalamero, and for this reason the first pointshould have been decided by the court below in a negative sense.
It was not expressly pretended that the said will should be disallowed under theprovisions of section 634 of the Code of Civil Procedure, either because the testator wasinsane or otherwise mentally incapable to execute such instrument at the time of itsexecution, or because it was procured by undue and improper pressure and influence on thepart of the beneficiaries; nor even if such request had been made, could the nullity ofthe said will have been judicially declared in view of the lack of satisfactory proof of
the presence of such circumstances. Therefore, the court, in order to disallow thepetition, had to disregard them and rest the decision upon the allegation that the willwas not executed in accordance with the provisions of section 618 of the Code of CivilProcedure.
Notwithstanding the reasons stated in the judgment appealed from, it appears thatthe will in question was executed with the requirements established by the law in force,and that, therefore, the decision upon the second point should be against the opponents tothe petition.
It is shown by the evidence, and by the will itself, that for the reasons set forthby the testator and at his own request, one of the witnesses to the will, MarianoZaguirre, wrote with his own hand the name and surname of Juan Zalamero, the testator, andhis presence, and that the latter put a cross between them and a note stating that whathad been written before the name and surname of the said Juan Zalamero, with the crossplaced at the foot thereof, was his testament and contained his last will as stated by himwhen he directed the execution thereof in the presence of the three witnesses whosubscribed it in his presence, and in the presence of each other.
It is true that the witness Mariano Zaguirre, who was requested by the testator towrite his name and surname at the end of his will, did not affix his own signatureimmediately below the name and surname of Juan Zalamero and below the cross placed by thelatter with the words "by request of the testator Juan Zalamero;" but in the said will areclearly stated the reason why it was not signed by the testator himself as also therequest he made to the witness Zaguirre, and a repetition thereof was not necessary;further, that this same witness, upon being requested, wrote with his own hand the nameand surname of the testator, who afterwards placed the cross between them, stating that itwas his statement, all of which was written immediately after the said name and surname ofthe testator and the cross made by him, and the same was subscribed by the three witnessesin the manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the lawhave been complied with, namely, that three witnesses were present at the execution of thewill of Juan Zalamero at the date mentioned therein; that they heard his statement thatthe said instrument, written and drawn up under his direction, contained his last will;that they saw and witnessed when, at the express request of the testator, and under hisdirection, the witness, Mariano Zaguirre, wrote at the foot of the will the name andsurname of Juan Zalamero, and when the latter put the cross between his written name andsurname, each of the witnesses subscribing it at the time and in the presence of eachother.
For the reasons hereinbefore set forth it is our opinion that the judgment appealedfrom should be reversed and that it be declared, as we now do, that the will executed bythe late Juan Zalamero while in life, under date of the 29th of October, 1905, wasexecuted in accordance with the law, and that therefore it should be duly admitted inorder that it may produce all consequent legal effects, and it is so ordered without anyspecial ruling as to costs.
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EN BANC[G.R. No. 1641. January 19, 1906.]GERMAN JABONETA, plaintiff-appellant, vs. RICARDO GUSTILO, ET AL., defendants-
appellees.Ledesma, Sumulong & Quintos, for appellant.Del-Pan, Ortigas & Fisher, for appellees.D E C I S I O NCARSON, J p:In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the evidence adducedat the hearing that Julio Javellana, one of the witnesses, did not attach his signaturethereto in the presence of Isabelo Jena, another of the witnesses, as required by theprovisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particularpoint, being a part of the testimony of the said Isabelo Jena:
"Q. Who first signed the will?"A. I signed it first, and afterwards Aniceto and the others."Q. Who were those others to whom you have just referred?"A. After the witness Aniceto signed the will I left the house, because I was in a
hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his handin position ready to sign (en actitud de firmar). I believe he signed, because he was atthe table. . . .
"Q. State positively whether Julio Javellana did or did not sign as a witness tothe will.
"A. I can't say certainly, because as I was leaving the house I saw JulioJavellana with the pen in his hand, in position ready to sign. I believe he signed.
"Q. Why do you believe Julio Javellana signed?"A. Because he had the pen in his hand, which was resting on the paper, though I
did not actually see him sign."Q. Explain this contradictory statement."A. After I signed I asked permission to leave, because I was in a hurry, and
while I was leaving Julio had already taken the pen in his hand, as it appeared, for thepurpose of signing, and when I was near the door I happened to turn my face and I saw thathe had his hand with the pen resting on the will, moving it as if for the purpose ofsigning.
"Q. State positively whether Julio moved his hand with the pen as if for thepurpose of signing, or whether he was signing.
"A. I believe he was signing."The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless, foundthe following facts:
"On the 26th day of December, 1901, Macario Jaboneta executed under the followingcircumstances the document in question, which has been presented for probate as his will:
"Being in the house of Arcadio Jarandilla, in Jaro, in this province, he orderedthat the document in question be written, and calling Julio Javellana, Aniceto Jalbuena,and Isabelo Jena as witnesses, executed the said document as his will. They were alltogether, and were in the room where Jaboneta was, and were present when he signed thedocument, Isabelo Jena signing afterwards as a witness, at his request, and in hispresence and in the presence of the other two witnesses. Aniceto Jalbuena then signed as awitness to the presence of the testator, and in the presence of the other two persons whosigned as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hatand left the room. As he was leaving the house Julio Javellana took the pen in his handand put himself in position to sign the will as a witness, but did not sign in thepresence of Isabelo Jena; but nevertheless, after Jena had left the room the said JulioJavellana signed as a witness in the presence of the testator and of the witness AnicetoJalbuena."
We can not agree with so much of the above findings of facts as holds that thesignature of Javellana was not signed in the presence of Jena, in compliance with theprovisions of section 618 of the Code of Civil Procedure. The fact that Jena was still inthe room when he saw Javellana moving his hand and pen in the act of affixing hissignature to the will, taken together with the testimony of the remaining witnesses, whichshows that Javellana did in fact there and then sign his name to the will, convinces usthat the signature was affixed in the presence of Jena. The fact that he was in the act ofleaving, and that his back was turned while a portion of the name of the witness was beingwritten, is of no importance. He, with the other witnesses and the testator, has assembledfor the purpose of execution the testament, and were together in the same room for thatpurpose, and at the moment when the witness Javellana signed the document he was actuallyand physically present and in such position with relation to Javellana that he could seeeverything which took place by merely casting his eyes in the proper direction, andwithout any physical obstruction to prevent his doing so, therefore we are of opinion thatthe document was in fact signed before he finally left the room.
"The purpose of a statutory requirement that the witness sign in the presence of thetestator is said to be that the testator may have ocular evidence of the identity of theinstrument subscribed by the witness and himself, and the generally accepted tests ofpresence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,and cases there cited.)"
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient ifit witnesses are together for the purpose of witnessing the execution of the will, and ina position to actually see the testator write, if they choose to do so; and there are manycases which law down the rule that the true test of vision is not whether the testatoractually saw the witness sign, but whether he might have seen him sign, considering hismental and physical condition and position at the time of the subscription. (Spoonemorevs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between thetestator and the witnesses are equally applicable in determining whether the witnessessigned the instrument in the presence of each other, as required by the statute, andapplying them to the facts proven in these proceedings we are of opinion that thestatutory requisites as to the execution of the instrument were complied with, and thatthe lower court erred in denying probate to the will on the ground stated in the rulingappealed from.
We are of opinion from the evidence of record that the instrument propounded inthese proceedings was satisfactorily proven to be the last will and testament of MacarioJaboneta, deceased, and that it should therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs,and after twenty days the record will be returned to the court from whence it came, wherethe proper orders will be entered in conformance herewith. So ordered.
EN BANC[G.R. No. L-5971. February 27, 1911.]BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-
appellant.Valerio Fontanilla and Andres Asprer for appellant.Anacleto Diaz for appellees.D E C I S I O NCARSON, J p:The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribingwitnesses was present in the small room where it was executed at the time when thetestator and the other subscribing witnesses attached their signatures; or whether at thattime he was outside, some eight or ten feet away, in a large room connecting with thesmaller room by a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing witnesses in the actof attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witnesswas in the small room with the testator and the other subscribing witnesses at the timewhen they attached their signatures to the instrument, and this finding, of course,disposes of the appeal and necessitates the affirmance of the decree admitting thedocument to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of thisquestion of fact of vital importance in the determination of this case, as he was ofopinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer roomwhen the testator and the other describing witnesses signed the instrument in the innerroom, had it been proven, would not be sufficient in itself to invalidate the execution ofthe will. But we are unanimously of opinion that had this subscribing witness been provento have been in the outer room at the time when the testator and the other subscribingwitnesses attached their signatures to the instrument in the inner room, it would havebeen invalid as a will, the attaching of those signatures under circumstances not beingdone "in the presence" of the witness in the outer room. This because the line of visionfrom this witness to the testator and the other subscribing witnesses would necessarilyhave been impeded by the curtain separating the inner from the outer one "at the moment ofinscription of each signature."
In the case just cited, on which the trial court relied, we held that:"The true test of presence of the testator and the witnesses in the execution of a
will is not whether they actually saw each other sign, but whether they might have beenseen each other sign, had they chosen to do so, considering their mental and physicalcondition and position with relation to each other at the moment of inscription of eachsignature."
But it is especially to be noted that the position of the parties with relation toeach other at the moment of the subscription of each signature, must be such that they maysee each other sign if they choose to do so. This, of course, does not mean that thetestator and the subscribing witnesses may be held to have executed the instrument in thepresence of each other if it appears that they would not have been able to see each othersign at that moment, without changing their relative positions or existing conditions. Theevidence in the case relied upon by the trial judge discloses that "at the moment when thewitness Javellana signed the document he was actually and physically present and in suchposition with relation to Jaboneta that he could see everything that took place by merelycasting his eyes in the proper direction and without any physical obstruction to preventhis doing so." And the decision merely laid down the doctrine that the question whetherthe testator and the subscribing witnesses to an alleged will sign the instrument in thepresence of each other does not depend upon proof of the fact that their eyes wereactually cast upon the paper at the moment of its subscription by each of them, but thatat that moment existing conditions and their position with relation to each other weresuch that by merely casting the eyes in the proper direction they could have seen eachother sign. To extend the doctrine further would open the door to the possibility of allmanner of fraud, substitution, and the like, and would defeat the purpose for which thisparticular condition is prescribed in the code as one of the requisites in the executionof a will.
The decree entered by the court below admitting the instrument propounded therein toprobate as the last will and testament of Pedro Rimando, deceased, is affirmed with costsof this instance against the appellant.
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EN BANC[G.R. No. 26545. December 16, 1927.]Testate Estate of Florencia R. G MATEO, ET AL., PERFECTO GABRIEL , petitioner-
appellee, vs. RITA R. MATEO, ET AL., opponents-appellants.R. Gonzalez Lloret, Carlos S. Basa, Thomas Cary Welch and Camus, Delgado & Recto,
for appellants.The appellee in his own behalf.D E C I S I O NAVANCEÑA, C.J p:The judgment appealed from allowed the will of Florencia Mateo dated February 6,
1923, composed of two used sheets to probate. The will appears to be signed by thetestatrix and three witnesses on the left margin of each of the sheets, by the testatrixalone at the bottom, and by the three witnesses after the attestation clause. Thetestatrix died on August 13, 1925. Opposition to such probate was filed by Rita Mateo, thetestatrix's sister, and by other relatives.
The three attesting witnesses to this will, testifying in this case, declared thatthe signatures of the testatrix were written in their presence and that they signed theirnames in the presence of the testatrix and of each other.
The testatrix from girlhood knew how to sign her name and did so with her righthand; but, as the right side of her body later became paralyzed, she learned to sign withher left hand and for many years thereafter, up to the time of her death, she used to signwith that hand. Opponents allege that Florencia Mateo did not sign this will.
There are three salient arguments among those adduced by the opponents in support oftheir opposition.
The attesting witnesses testified that the testatrix signed before they did. Thesignatures of the testatrix on the left margin of the two sheets of the will are betweenthe signatures of the two witnesses Vidal Rañoa and Julio Gabriel, and below her surnameis the signature of the other witness Felicisimo Gabriel. The signatures of Vidal Rañoaand Julio Gabriel are on a level with each other, while that of Felicisimo Gabriel isfound a little lower down. The testatrix's signatures start on the line with FelicisimoGabriel's signature, but tend to rise and her surname reaches a level with Julio Gabriel'ssignature.
It is said that this direction of the testatrix's signature was due to the fact thatwhen it was written Felicisimo Gabriel's signature was already there, and so she had towrite her surname upwards in order to avoid interfering with that of Felicisimo Gabriel,which would have been the case had she continued on the horizontal line on which she had
written her first name. From this detail it is pretended to draw the inference that theattesting witnesses signed before the testatrix, contrary to their testimony that shesigned before they did. This deduction, however, is unnecessary. It may be inferred withequal, if not greater, logic that the testatrix signed before him, and when it came to thewitness Gabriel's turn, he, finding the space below the testatrix's signature free, signedhis name there. On the other hand, it may be noted that the testatrix's other signature atthe bottom of the will also shows a more or less marked tendency to rise, notwithstandingthe fact that there was no signature with which she might interfere if she continued towrite in a straight horizontal line. Furthermore, if, as the opposition alleges, thetestatrix's signature is not genuine and was placed there by another person, it is strangethat the latter should have done so in such a way as to write it above Gabriel's signaturewhile following the horizontal line, when this could have been avoided by simply puttingit a little higher. And this may be attributed to carelessness in the first case, but itcannot be so explained in the second.
Attention is also called to the apparently different kinds of ink used by thetestatrix in her signature and by the attesting witnesses. Really an examination of thesesignatures reveals a somewhat deeper intensity of ink in the signature of the testatrixthan in those of the attesting witnesses. It is alleged that this circumstance cannot bereconciled with the declaration of the attesting witnesses that they used the same pen andink as the testatrix. But, only one of these witnesses declared this. The other one wasnot sure of it and said that he did not perfectly remember this detail. The third scarcelymade reference to this particular. At all events, this apparent difference in ink may bemerely due — supposing that the same ink and pen were used — to the difference in pressureemployed in writing these signatures, as is reasonable to suppose when we consider thatthe testatrix was a paralytic and wrote with her left hand; or it may have been due to thefact that the attesting witnesses dipped lightly in the ink while the testatrix dipped thepen so as to take up the ink from the bottom of the well. To bring out this irregularity,the opposition presented the expert Del Rosario who asserted, among other things, that thesignature of the testatrix is more recent than that of the attesting witnesses. If thisopinion is correct and if, as alleged, the testatrix's signature is forged, it would meanthat the forgers, after having prepared the will and made the witnesses sign, allowed sometime to elapsed before forging the testatrix's signature, which supposition is not at allprobable, nor has it been explained.
At all events, even admitting that there is a certain question as to whether theattesting witnesses signed before or after the testatrix, or whether or not they signedwith the same pen and ink, these are details of such trivial importance, considering thatthis will was signed two years before the date on which these witnesses gave theirtestimony, that it is not proper to set aside the will for this reason alone.
The attesting witnesses to this will, who testified also as witnesses at the trialof this case, showed themselves to be intelligent and honest, one of them being a lawyerof twelve years' practice, and there is no reason to reject their testimony, and tosuppose that they were untruthful in testifying, and that they falsified the will inquestion.
Lastly, attention is called to the unreasonableness of the testatrix in not leavinganything to the principal opponent, her sister Rita Mateo, and to her nephews and nieces,to whom she had been so affectionate during life. But as to the affectionate relationsbetween the deceased and the opponents, only the opponent Rita Mateo testified, and sheonly stated that she was on good terms with her sister during the latter's lifetime; thatthe said sister used to give her a sack or some gantas of rice, and, at times, a littlemoney; that she held all her nephews and nieces in equal regard. But even supposing thatthis were so, there is nothing strange in the testatrix having left nothing to theopponents, or in her having left all of her estate to the only heir instituted in herwill, Tomasa Mateo, who is also one of her nieces. And not only is it not strange, but itseems reasonable, since, according to the evidence of the opposition itself, Tomasa Mateohad been taken in by the testatrix when the former was but 3 years old, and from then onup to the time of her death had never been separated from her.
The opposition presented Doctor Banks as expert. He testified that the signatures ofthe testatrix in the will are not genuine. The petitioner, on the other hand, presentedanother expert, Pedro Serrano Laktao, who affirmed that these signatures are genuine. But,over the testimony of these experts, we have the categorical and positive declaration ofveracious witnesses who affirm that these signatures were written by the testatrixherself.
The judgment appealed from is affirmed, with costs against the appellants. Soordered.
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FIRST DIVISION[G.R. No. L-37453. May 25, 1979.]RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.Francisco D. Rilloraza, Jr. for petitioners.Angel A. Sison for private respondent.D E C I S I O NGUERRERO, J p:This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA-G. R. No. 36523-R which reversed the decisionof the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate ofthe last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago fileda petition with the Court of First Instance of Rizal docketed as Special Proceedings No.3617, for the probate of a will alleged to have been executed by the deceased IsabelGabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as awidow and without issue in the municipality of Navotas, province of Rizal her place ofresidence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It islikewise not controverted that herein private respondent Lutgarda Santiago and petitionerRizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, withher husband and children, lived with the deceased at the latter's residence prior and upto the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog,appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2)months prior to the death of Isabel Gabriel. It consists of five (5) pages, including thepages whereon the attestation clause and the acknowledgment of the notary public werewritten. The signatures of the deceased Isabel Gabriel appear at the end of the will onpage four and at the left margin of all the pages. The attestation clause, which is foundon page four, reads as follows:
"PATUNAY NG MGA SAKSI"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuona ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito nabinubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO ATHULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na siIsabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat nadahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat atbawat dahon (and on the left hand margin of each and every page), sa harap ng lahat atbawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, atsa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwangpanig ng lahat at bawa't dahon ng testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures ofMatilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under theheading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife,for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signaturesalso appear on the left margin of all the other pages. The will is paged by typewritten
words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" andunderneath "(Page Two)", etc., appearing at the top of each page. prLL
The will itself provides that the testatrix desired to be buried in the CatholicCemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, allexpenses to be paid from her estate; that all her obligations, if any, be paid; thatlegacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago,her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina(herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina,Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The hereinprivate respondent Lutgarda Santiago, who was described in the will by the testatrix as"aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isangtunay na anak" and named as universal heir and executor, were bequeathed all propertiesand estate, real or personal, already acquired, or to be acquired, in her (testatrix's)name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailingthe document purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative2. that the same was not executed and attested as required by law;3. that, at the time of the alleged execution of the purported will, the decedent
lacked testamentary capacity due to old age and sickness; and in the second alternative4. that the purported will was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for herbenefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. Aftertrial the court a quo rendered judgment, the summary and dispositive portions of whichread:
"Passing in summary upon the grounds advanced by the oppositor, this Court finds:"1. That there is no iota of evidence to support the contention that the purported
will of the deceased was procured through undue and improper pressure and influence on thepart of the petitioner, or of some other person for her benefit;
"2. That there is insufficient evidence to sustain the contention that at the timeof the alleged execution of the purported will, the deceased lacked testamentary capacitydue to old age and sickness;
"3. That sufficient and abundant evidence warrants conclusively the fact that thepurported will of the deceased was not executed and attested as required by law;
"4. That the evidence is likewise conclusive that the document presented forprobate, Exhibit 'F' is not the purported will allegedly dictated by the deceased,executed and signed by her, and attested by her three attesting witnesses on April 15,1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will andtestament of the deceased Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court,hence, the only issue decided on appeal was whether or not the will in question wasexecuted and attested as required by law. The Court of Appeals, upon consideration of theevidence adduced by both parties, rendered the decision now under review, holing that thewill in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and MariaGimpaya, signing and witnessing the document in the presence of the deceased and of eachother as required by law, 2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaiddecision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago.Thereafter, parties submitted their respective Memoranda, 5 and on August 28, 1973,respondent Court, Former Special First Division, by Resolution 6 denied the motion forreconsideration stating that:
"The oppositor-appellee contends that the preponderance of evidence shows that thesupposed last will and testament of Isabel Gabriel was not executed in accordance with lawbecause the same was signed on several occasions, that the testatrix did not sign the willin the presence of all the instrumental witnesses did not sign the will in the presence ofeach other.
"The resolution of the factual issue raised in the motion for reconsideration hingeson the appreciation of the evidence. We have carefully re-examined the oral anddocumentary evidence of record. There is no reason to alter the findings of fact in thedecision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends thatrespondent Court abused its discretion and/or acted without or in excess of itsjurisdiction in reversing the findings of fact and conclusions of the trial court. TheCourt, after deliberating on the petition but without giving due course resolved, in theResolution dated Oct. 11, 1973 to require the respondents to comment thereon, whichcomment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issuesraised and the arguments adduced in the petition, as well as the Comment 8 of privaterespondent thereon, We denied the petition by Resolution on November 26, 1973, 9 thequestion raised being factual and for insufficient showing that the findings of fact byrespondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed aMotion for Reconsideration 10 which private respondent answered by way of her Comment orOpposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally,on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:I. The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely no proof thatthe three instrumental witnesses were credible witnesses.
II. The Court of Appeals erred in reversing the finding of the lower court thatthe preparation and execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previouslyfurnished with the names and residence certificates of the witnesses as to enable him totype such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewrittenlines under the typewritten words "Pangalan" and "Tinitirahan" were left blank showsbeyond cavil that the three attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it wasincredible that Isabel Gabriel could have dictated the will, Exhibit "F", without any noteor document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court thatMatilde Orubia was not physically present when the will, Exhibit "F" was allegedly signedon April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya andMaria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undueimportance to the picture takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions,and misrepresentations of witnesses (subscribing and notary) presented by the petitionerhad been explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has sofar departed from the accepted and usual course of judicial proceedings, as to call for anexercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court andadmitting to probate Exhibit "F", the alleged last will and testament of the deceasedIsabel Gabriel.
It will be noted from the above assignments of errors that the same aresubstantially factual in character and content. Hence, at the very outset, We must againstate the oft-repeated and well-established rule that in this jurisdiction, the factualfindings of the Court of Appeals are not reviewable, the same being binding and conclusiveon this Court. This rule has been stated and reiterated in a long line of cases enumeratedin Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202,February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista vs. Carilloand CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs ofCatalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA,this Court said: LibLex
". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the thenJustice Recto, it has been well-settled that the jurisdiction of this Court in casesbrought to us from the Court of Appeals is limited to reviewing and revising the errors oflaw imputed to it, its findings of fact being conclusive. More specifically, in a decisionexactly a month later, this Court, speaking through the then Justice Laurel it was heldthat the same principle is applicable, even if the Court of Appeals was in disagreementwith the lower court as to the weight of the evidence with a consequent reversal of itsfindings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported bysubstantive evidence are not reviewable on appeal by certiorari. Said findings of theappellate court are final and cannot be disturbed by Us particularly because its premisesare borne out by the record or based upon substantial evidence and what is more, when suchfindings are correct. Assignments of errors involving factual issues cannot be ventilatedin a review of the decision of the Court of Appeals because only legal questions may beraised. The Supreme Court is not at liberty to alter or modify the facts as set forth inthe decision of the Court of Appeals sought to be reversed. Where the findings of theCourt of Appeals are contrary to that of the trial court, a minute scrutiny by the SupremeCourt is in order, and resort to duly-proven evidence becomes necessary. The general ruleWe have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed toconsider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appealserred in holding that the document, Exhibit "F", was executed and attested as required bylaw when there was absolutely no proof that the three instrumental witnesses were crediblewitnesses. She argues that the requirement in Article 806, Civil Code, that the witnessesmust be credible is an absolute requirement which must be complied with before an allegedlast will and testament may be admitted to probate and that to be a credible witness,there must be evidence on record that the witness has a good standing in his community, orthat he is honest and upright, or reputed to be trustworthy and reliable. According topetitioner, unless the qualifications of the witness are first established, his testimonymay not be favorably considered. Petitioner contends that the term "credible" is notsynonymous with "competent" for a witness may be competent under Article 820 and 821 ofthe Civil Code and still not be credible as required by Article 805 of the same Code. Itis further urged that the term "credible" as used in the Civil Code should receive thesame settled and well-known meaning it has under the Naturalization Law, the latter beinga kindred legislation with the Civil Code provisions on wills with respect to thequalifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the CivilCode provides the qualifications of a witness to the execution of wills while Article 821sets forth the disqualification from being a witness to a will. These Articles state:
"Art. 820. Any person of sound mind and of the age of eighteen years or more, andnot blind, deaf or dumb, and able to read and write, may be a witness to the execution ofa will mentioned in article 805 of this Code.
"Art. 821. The following are disqualified from being witnesses to a will:(1) Any person not domiciled in the Philippines,(2) Those who have been convicted of falsification of a document, perjury or false
testimony.Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his reputationfor trustworthiness and reliableness, his honesty and uprightness in order that histestimony may be believed and accepted by the trial court. It is enough that thequalifications enumerated in Article 820 of the Civil Code are complied with, such thatthe soundness of his mind can be shown by or deduced from his answers to the questionspropounded to him, that his age (18 years or more) is shown from his appearance,testimony, or competently proved otherwise, as well as the fact that he is not blind, deafor dumb and that he is able to read and write to the satisfaction of the Court, and thathe has none of the disqualifications under Article 821 of the Civil Code. We rejectpetitioner's contention that it must first be established in the record the good standingof the witness in the community, his reputation for trustworthiness and reliableness, hishonesty and uprightness, because such attributes are presumed of the witness unless thecontrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" asused in the Civil Code should be given the same meaning it has under the NaturalizationLaw where the law is mandatory that the petition for naturalization must be supported bytwo character witnesses who must prove their good standing in the community, reputationfor trustworthiness and reliableness, their honesty and uprightness. The two witnesses ina petition for naturalization are character witnesses in that being citizens of thePhilippines, they personally know the petitioner to be a resident of the Philippines forthe period of time required by the Act and a person of good repute and morallyirreproachable and that said petitioner has in their opinion all the qualifications
necessary to become a citizen of the Philippines and is not in any way disqualified underthe provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses forthey merely attest the execution of a will or testament and affirm the formalitiesattendant to said execution. And We agree with the respondent that the rulings laid downin the cases cited by petitioner concerning character witnesses in naturalizationproceedings are not applicable to instrumental witnesses to wills executed under the CivilCode of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumentalwitnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent andcredible is satisfactorily supported by the evidence as found by the respondent Court ofAppeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover,petitioner has not pointed to any disqualification of any of the said witnesses, much lesshas it been shown that anyone of them is below 18 years of age, of unsound mind, deaf ordumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than aholographic will, must be subscribed at the end thereof by the testator himself or by thetestator's name written by some other person in his presence, and by his expressdirection, and attested and subscribed by three or more credible witnesses in the presenceof the testator and of one another. While the petitioner submits that Article 820 and 821of the New Civil Code speak of the competency of a witness due to his qualifications underthe first Article and none of the disqualifications under the second Article, whereasArticle 805 requires the attestation of three or more credible witnesses, petitionerconcludes that the term credible requires something more than just being competent and,therefore, a witness in addition to being competent under Articles 820 and 821 must alsobe a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witnessare not synonymous terms and one may be a competent witness and yet not a credible one.She exacerbates that there is no evidence on record to show that the instrumentalwitnesses are credible in themselves, that is, that they are of good standing in thecommunity since one was a family driver by profession and the second the wife of thedriver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix andhis wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacherto a grandchild of the testatrix. But the relation of employer and employee much less thehumble social or financial position of a person do not disqualify him to be a competenttestamentary witness. (Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344;Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more crediblewitnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 ofthe same Code, this being obvious from that portion of Article 820 which says "may be awitness to the execution of a will mentioned in Article 805 of this Code," and citesauthorities that the word "credible" insofar as witnesses to a will are concerned simplymeans "competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Courtheld that "Granting that a will was duly executed and that it was in existence at the timeof, and not revoked before, the death of the testator, still the provisions of the lostwill must be clearly and distinctly proved by at least two credible witnesses. 'Crediblewitnesses' mean competent witnesses and not those who testify to facts from or uponhearsay." (emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the SupremeCourt held that "Section 620 of the same Code of Civil Procedure provides that any personof sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb andable to read and write, may be a witness to the execution of a will. This same provisionis reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer andemployee, or being a relative to the beneficiary in a will, does not disqualify one to bea witness to a will. The main qualification of a witness in the attestation of wills, ifother qualifications as to age, mental capacity and literacy are present, is that saidwitness must be credible, that is to say, his testimony may be entitled to credence. Thereis a long line of authorities on this point, a few of which we may cite:
"A 'credible witness' is one who is not disqualified to testify by mentalincapacity, crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A.619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competentwitness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).
"Expression 'credible witness' in relation to attestation of wills means 'competentwitness'; that is, one competent under the law to testify to fact of execution of will.Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60S. W. 2nd 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall beattested by two credible witnesses means competent; witnesses who, at the time ofattesting the will, are legally competent to testify, in a court of justice, to the factsattested by subscribing the will, the competency being determined as of the date of theexecution of the will and not of the time it is offered for probate. Smith vs. Goodell,101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competentwitnesses — that is, such persons as are not legally disqualified from testifying incourts of justice, by reason of mental incapacity, interest, or the commission of crimes,or other cause excluding them from testifying generally, or rendering them incompetent inrespect of the particular subject matter or in the particular suit. Hill vs. Chicago Title& Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to awill is determined by the statute, that is Art. 820 and 821, Civil Code, whereas hiscredibility depends on the appreciation of his testimony and arises from the belief andconclusion of the Court that said witness is telling the truth. Thus, in the case of Vda.de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, theSupreme Court held and ruled that: "Competency as a witness is one thing, and it isanother to be a credible witness, so credible that the Court must accept what he says.Trial courts may allow a person to testify as a witness upon a given matter because he iscompetent, but may thereafter decide whether to believe or not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competentmust be shown to have the qualifications under Article 820 of the Civil Code and none ofthe disqualifications under Article 821 and for their testimony to be credible, that isworthy of belief and entitled to credence, it is not mandatory that evidence be firstestablished on record that the witnesses have a good standing in the community or thatthey are honest and upright or reputed to be trustworthy and reliable, for a person ispresumed to be such unless the contrary is established otherwise. In other words, theinstrumental witnesses must be competent and their testimonies must be credible before thecourt allows the probate of the will they have attested. We, therefore, rejectpetitioner's position that it was fatal for respondent not to have introduced prior andindependent proof of the fact that the witnesses were "credible witnesses", that is, thatthey have a good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments oferrors, petitioner disputes the findings of fact of the respondent court in finding thatthe preparation and execution of the will was expected and not coincidental, in findingthat Atty. Paraiso was not previously furnished with the names and residence certificatesof the witnesses as to enable him to type such data into the document Exhibit "F", inholding that the fact that the three typewritten lines under the typewritten words"pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attestingwitnesses were all present in the same occasion, in holding credible that Isabel Gabrielcould have dictated the will without note or document to Atty. Paraiso, in holding thatMatilde Orobia was physically present when the will was signed on April 15, 1961 by thedeceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, inholding that the trial court gave undue importance to the picture takings as proof thatthe will was improperly executed, and in holding that the grave contradictions, evasionsand misrepresentations of the witnesses (subscribing and notary) presented by thepetitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid downthat the findings of fact of the appellate court are binding and controlling which Wecannot review, subject to certain exceptions which We will consider and discusshereinafter. We are convinced that the appellate court's findings are sufficientlyjustified and supported by the evidence on record. Thus, the alleged unnaturalnesscharacterizing the trip of the testatrix to the office of Atty. Paraiso and bringing allthe witnesses without previous appointment for the preparation and execution of the willand that it was coincidental that Atty. Paraiso was available at the moment impugns thefinding of the Court of Appeals that although Atty. Paraiso admitted the visit of IsabelGabriel and of her companions to his office on April 15, 1961 was unexpected as there wasno prior appointment with him, but he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier requested him to help herprepare her will. The finding of the appellate court is amply based on the testimony ofCelso Gimpaya that he was not only informed on the morning of the day that he witnessedthe will but that it was the third time when Isabel Gabriel told him that he was going towitness the making of her will, as well as the testimony of Maria Gimpaya that she wascalled by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearbyand from said house, they left in a car to the lawyer's office, which testimonies arerecited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and hiswife Maria Gimpaya obtained residence certificates a few days before Exhibit "F" wasexecuted. Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizalon April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issuedalso at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed thatthere was nothing surprising in these facts and that the securing of these residencecertificates two days and one day, respectively, before the execution of the will on April15, 1961, far from showing an amazing coincidence, reveals that the spouses were earliernotified that they would be witnesses to the execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to theoffice of Atty. Paraiso was planned by the deceased, which conclusion was correctly drawnfrom the testimony of the Gimpaya spouses that they started from the Navotas residence ofthe deceased with a photographer and Isabel Gabriel herself, then they proceeded by car toMatilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all thethree witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayedfor about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded toAtty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previousto the day that the will was executed on April 15, 1961, Isabel Gabriel had requested himto help her in the execution of her will and that he told her that if she really wanted toexecute her will, she should bring with her at least the Mayor of Navotas, Rizal and aCouncilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificatefrom a physician notwithstanding the fact that he believed her to be of sound anddisposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia,Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty.Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabrielherself."
As to the appellate court's finding that Atty. Paraiso was not previously furnishedwith the names and residence certificates of the witnesses as to enable him to type suchdata into the document Exhibit "F", which the petitioner assails as contradictory andirreconcilable with the statement of the Court that Atty. Paraiso was handed a list(containing the names of the witnesses and their respective residence certificates)immediately upon their arrival in the law office by Isabel Gabriel and this wascorroborated by Atty. Paraiso himself who testified that it was only on said occasion thathe received such list from Isabel Gabriel, We cannot agree with petitioner's contention.We find no contradiction for the respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no suchlist was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residencecertificates of the witnesses on a prior occasion or on the very occasion and date inApril 15, 1961 when the will was executed, is of no moment for such data appear in thenotarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by thewitnesses on April 15, 1961 following the attestation clause duly executed and signed onthe same occasion, April 15, 1961. And since Exhibit "F" is a notarial will dulyacknowledged by the testatrix and the witnesses before a notary public, the same is apublic document executed and attested through the intervention of the notary public and assuch public document is evidence of the facts in clear, unequivocal manner thereinexpressed. It has in its favor the presumption of regularity. To contradict all these,there must be evidence that is clear, convincing and more than merely preponderant.(Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in thecase at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that thethree typewritten lines under the typewritten words "pangalan" and "tinitirahan" were leftblank shows beyond cavil that the three attesting witnesses were all present in the same
occasion merits Our approval because this conclusion is supported and borne out by theevidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath thetypewritten words "names", "Res. Tax Cert.", "date issued" and "place issued" the onlyname of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on February 24,1961 at Navotas, Rizal appears to be in typewritten form while the names, residence taxcertificate numbers, dates and places of issuance of said certificates pertaining to thethree (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincideswith Atty. Paraiso's even the sale must be made to close relatives; and the seventh wasthe appointment of the appellant Santiago as executrix of the will without bond. Thetechnical description of the properties in paragraph 5 of Exhibit F was not given and thenumbers of the certificates of title were only supplied by Atty. Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of theproperties disposed and the docket number of a special proceeding are indicated whichAtty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends thatit was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without anynote or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sicklywoman more than eighty-one years old and had been suffering from a brain injury caused bytwo severe blows at her head and died of terminal cancer a few weeks after the executionof Exhibit "F". While we can rule that this is a finding of fact which is within thecompetency of the respondent appellate court in determining the testamentary capacity ofthe testatrix and is, therefore, beyond Our power to revise and review, We neverthelesshold that the conclusion reached by the Court of Appeals that the testatrix dictated herwill without any note or memorandum appears to be fully supported by the following factsor evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularlyactive in her business affairs as she actively managed the affairs of the movie businessIsabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before herdeath. She was the widow of the late Eligio Naval, former Governor of Rizal Province andacted as co-administratrix in the Intestate Estate of her deceased husband Eligio Naval.The text of the will was in Tagalog, a dialect known and understood by her and in thelight of all the circumstances, We agree with the respondent Court that the testatrixdictated her will without any note or memorandum, a fact unanimously testified to by thethree attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, bothtestimonial and documentary is, according to the respondent court, overwhelming thatMatilde Orobia was physically present when the will was signed on April 15, 1961 by thetestatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factualfinding of the appellate court is very clear, thus: "On the contrary, the record isreplete with proof that Matilde Orobia was physically present when the will was signed byIsabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and MariaGimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessonsto the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happenedto be a Saturday for which reason Orobia could not have been present to witness the willon that day — is purely conjectural. Witness Orobia did not admit having given pianolessons to the appellant's child every Wednesday and Saturday without fail. It is highlyprobable that even if April 15, 1961 were a Saturday, she gave no piano lessons on thatday for which reason she could have witnessed the execution of the will. Orobia spoke ofoccasions when she missed giving piano lessons and had to make up for the same. Anyway,her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 andthere was nothing to preclude her from giving piano lessons on the afternoon of the sameday in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya thatMatilde was present on April 15, 1961 and that she signed the attestation clause to thewill and on the left-hand margin of each of the pages of the will, the documentaryevidence which is the will itself, the attestation clause and the notarial acknowledgmentoverwhelmingly and convincingly prove such fact that Matilde Orobia was present on thatday of April 15, 1961 and that she witnessed the will by signing her name thereon andacknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestationclause which Matilde Orobia signed is the best evidence as to the date of signing becauseit preserves in permanent form a recital of all the material facts attending the executionof the will. This is the very purpose of the attestation clause which is made for thepurpose of preserving in permanent form, a record of the facts attending the execution ofthe will, so that in case of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs.Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals inholding that the trial court gave undue importance to the picture-takings as proof thatthe will was improperly executed, We agree with the reasoning of the respondent courtthat: "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary towhat the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that thephotographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse oftime. The law does not require a photographer for the execution and attestation of thewill. The fact that Miss Orobia mistakenly identified the photographer as Cesar Mendozascarcely detracts from her testimony that she was present when the will was signed becausewhat matters here is not the photographer but the photograph taken which clearly portraysMatilde Orobia herself, her co-witnesses Celso Gimpaya." Further, the respondent Courtcorrectly held: "The trial court gave undue importance to the picture-takings, jumpingtherefrom to the conclusion that the will was improperly executed. The evidence however,heavily points to only one occasion of the execution of the will on April 15, 1961 whichwas witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses werequite emphatic and positive when they spoke of this occasion. Hence, their identificationof some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraisowas superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of Celso Gimpaya. But this was explained byAtty. Paraiso as a reenactment of the first incident upon the insistence of IsabelGabriel. Such reenactment where Matilde Orobia was admittedly no longer present was whollyunnecessary if not pointless. What was important was that the will was duly executed andwitnessed on the first occasion on April 15, 1961," and We agree with the Court'srationalization in conformity with logic, law and jurisprudence which do not requirepicture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentationsof witnesses in their respective testimonies before the trial court. On the other hand,the respondent Court of Appeals held that said contradictions, evasions andmisrepresentations had been explained away. Such discrepancies as in the description ofthe typewriter used by Atty. Paraiso which he described as "elite" which to him meant bigletters which are of the type in which the will was typewritten but which was identifiedby witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the name of thephotographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra,Jr. — these are indeed unimportant details which could have been affected by the lapse oftime and the treachery of human memory such that by themselves would not alter theprobative value of their testimonies on the true execution of the will, (Pascual vs. delaCruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person willbe identical and coinciding with each other with regard to details of an incident and thatwitnesses are not expected to remember all details. Human experience teach us "thatcontradictions of witnesses generally occur in the details of certain incidents, after along series of questionings, and far from being an evidence of falsehood constitute ademonstration of good faith. Inasmuch as not all those who witness an incident areimpressed in like manner, it is but natural that in relating their impressions, theyshould not agree in the minor details; hence the contradiction in their testimony." (Lopezvs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should nothave been disturbed by the respondent appellate court because the trial court was in abetter position to weigh and evaluate the evidence presented in the course of the trial.As a general rule, petitioner is correct but it is subject to well-established exceptions.The right of the Court of Appeals to review, alter and reverse the findings of the trialcourt where the appellate court, in reviewing the evidence has found that facts andcircumstances of weight and influence have been ignored and overlooked and thesignificance of which have been misinterpreted by the trial court, cannot be disputed.Findings of facts made by trial courts particularly when they are based on conflictingevidence whose evaluation hinges on questions of credibility of contending witnesses liespeculiarly within the province of trial courts and generally, the appellate court shouldnot interfere with the same. In the instant case, however, the Court of Appeals found thatthe trial court had overlooked and misinterpreted the facts and circumstances establishedin the record. Whereas the appellate court said that "Nothing in the record supports thetrial court's unbelief that Isabel Gabriel dictated her will without any note or document
to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not havewitnessed anybody signing the alleged will or that she could not have witnessed CelsoGimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signingit, is a conclusion based not on facts but on inferences; that the trial court gave undueimportance to the picture-takings, jumping therefrom to the conclusion that the will wasimproperly executed and that there is nothing in the entire record to support theconclusion of the court a quo that the will-signing occasion was a mere coincidence andthat Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing ofher will, then it becomes the duty of the appellate court to reverse findings of fact ofthe trial court in the exercise of its appellate jurisdiction over the lower courts. LLpr
Still the petitioner insists that the case at bar is an exception to the rule thatthe judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewedby the Supreme Court. Again We agree with the petitioner that among the exceptions are:(1) when the conclusion is a finding grounded entirely on speculations, surmises orconjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) whenthere is a grave abuse of discretion; (4) when the presence of each other as required bylaw. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographerproceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building,Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medicalcertificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at thelatter's office and told the lawyer that she wanted her will to be made; that Atty.Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and theattorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to andspoken by her; that Atty. Paraiso read back to her what he wrote as dictated and sheaffirmed their correctness; the lawyer then typed the will and after finishing thedocument, he read it to her and she told him that it was alright; that thereafter, IsabelGabriel signed her name at the end of the will in the presence of the three witnessesMatilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of eachand every page of the document in the presence also of the said three witnesses; thatthereafter Matilde Orobia attested the will by signing her name at the end of theattestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document inthe presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and MariaGimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clauseand at the left-hand margin of the other pages of the document in the presence of IsabelGabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing hername at the foot of the attestation clause and at the left-hand margin of every page inthe presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty.Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his NotarialRegister. On the occasion of the execution and attestation of the will, a photographertook pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel,Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing ofthe will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he hadearlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor ofNavotas, Rizal to be her witnesses for he did not know beforehand the identities of thethree attesting witnesses until the latter showed up at his law office with Isabel Gabrielon April 15, 1961. Atty. Paraiso's claim-which was not controverted that he wrote down inhis own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubtthat he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was crediblethat Isabel Gabriel could have dictated the will, Exhibit "F", without any note ordocument to Atty. Paraiso as against the contention of petitioner that it was incredible.This ruling of the respondent court is fully supported by the evidence on record as statedin the decision under review, thus: "Nothing in the record supports the trial court'sunbelief that Isabel Gabriel dictated her will without any note or document to Atty.Paraiso. On the contrary, all the three attesting witnesses uniformly testified thatIsabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paperthat she handed to said lawyer she had no note or document. This fact jibes with theevidence — which the trial court itself believed was unshaken — that Isabel Gabriel was ofsound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quitesimple. The first was Isabel Gabriel's wish to be interred according to Catholic rites;the second was a general directive to pay her debts if any; the third provided for
P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brotherSantiago Gabriel; the fourth was a listing of her 13 nephews and nieces includingoppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth was theinstitution of the petitioner-appellant, Lutgarda Santiago as the principal heirmentioning in general terms seven (7) types of properties; the sixth disposed of theremainder of her estate which she willed in favor of appellant Lutgarda Santiago butprohibiting the sale of such properties to anyone except in extreme situations in whichjudgment is based on a misapprehension of facts; (5) when the findings of fact areconflicting; (6) when the Court of Appeals, in making its findings, went beyond the issuesof the case and the same is contrary to the admissions of both appellant and appellee.(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola BottlingCo., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570;Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fallwithin any of the exceptions enumerated above. We likewise hold that the findings of factof the respondent appellate court are fully supported by the evidence on record. Theconclusions are fully sustained by substantial evidence. We find no abuse of discretionand We discern no misapprehension of facts. The respondent Court's findings of fact arenot conflicting. Hence, the well-established rule that the decision of the Court ofAppeals and its findings of fact are binding and conclusive and should not be disturbed bythis Tribunal and it must be applied in the case at bar in its full force and effect,without qualification or reservation. The above holding simply synthesizes the resolutionswe have heretofore made in respect to petitioner's previous assignments of error and towhich We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as Wefind the respondent Court acted properly and correctly and has not departed from theaccepted and usual course of judicial proceedings as to call for the exercise of the powerof supervision by the Supreme Court, and as We find that the Court of Appeals did not errin reversing the decision of the trial court and admitting to probate Exhibit "F", thelast will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation andevaluation of the evidence on record is unassailable that: "From the welter of evidencepresented, we are convinced that the will in question was executed on April 15, 1961 inthe presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing thesame in the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sittingaround the table. Atty. Paraiso, after finishing the notarial act, then delivered theoriginal to Isabel Gabriel and retained the other copies for his file and notarialregister. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya andanother photographer arrived at the office of Atty. Paraiso and told the lawyer that shewanted another picture taken because the first picture did not turn out good. The lawyertold her that this cannot be done because the will was already signed but Isabel Gabrielinsisted that a picture be taken, so a simulated signing was performed during whichincident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimoniesof the witnesses for the proponent of the will, their alleged evasions, inconsistenciesand contradictions. But in the case at bar, the three instrumental witnesses whoconstitute the best evidence of the will-making have testified in favor of the probate ofthe will. So has the lawyer who prepared it, one learned in the law and long in thepractice thereof, who thereafter notarized it. All of them are disinterested witnesses whostand to receive no benefit from the testament. The signatures of the witnesses and thetestatrix have been identified on the will and there is no claim whatsoever and by anyone,much less the petitioner, that they were not genuine. In the last and final analysis, theherein conflict is factual and we go back to the rule that the Supreme Court cannot reviewand revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,with costs against the petitioner.
SO ORDERED.
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SECOND DIVISION[G.R. No. 21755. December 29, 1924.]In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE,
petitioner-appellee, vs. LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.Manuel M. Calleja for appellants.Felix U. Calleja for appellee.D E C I S I O NROMUALDEZ, J p:This is a proceeding for the probate of the will of the deceased Antonio Mojal,
instituted by his surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojaland Luciana Aguilar, sister and niece, respectively, of the deceased.
The Court of first Instance of Albay, which tried the case, overruled the objectionsto the will, and ordered the probate thereof, holding that the document in controversy wasthe last will and testament of Antonio Mojal, executed in accordance with law. From thisjudgment the opponents appeal, assigning error to the decree of the court allowing thewill to probate and overruling their opposition.
The will in question, Exhibit A, is composed of four sheets with written matter ononly one side of each, that is, four pages written on four sheets. The four sides or pagescontaining written matter are paged ""Pag. 1," Pag. 2," "Pag. 3,", "Pag. 4," successively.Each of the first two sides or pates, which was used, was signed by the testator and thethree witnesses on the margin, left side of the reader. On the third page actually used,the signatures of the three witnesses appear also on the margin, left side of the reader,but the signature of the testator is not on the margin, but about the middle of the page,at the end of the will and before the attestation clause. On the fourth page, thesignatures of the witnesses do not appear on the margin, but at the bottom of theattestation clause, it being the signature of the testator that is on the margin, leftside of the reader.
The defects attributed to the will are:(a) The fact of not having been signed by the testator and the witnesses on each
and every sheet on the left margin; (b) the fact of the sheets of the document not beingpaged with letters; (c) the fact that the attestation clause does not state the number ofsheets or pages actually used of the will; and (d) the fact that the testator does notappear to have signed all the sheets in the presence of the three witnesses, and thelatter to have attested and signed all the sheets in the presence of the testator and ofeach other.
As to the signatures on the margin, it is true, as above stated, that the third pageactually used was signed by the testator, not on the left margin, as it was by thewitnesses, but about the middle of the page and at the end of the will; and that thefourth page was signed by the witnesses, not on the left margin, as it was by thetestator, but about the middles of the page and at the end of the attestation clause.
In the respect the holding of this court in the case of Avera vs. Garcia andRodriguez (42 Phil., 145), is applicable, wherein the will in question was signed by thetestator and the witnesses, not on the left, but on the right, margin. The rule laid downin that case is that the document contained the necessary signatures on each page, wherebyeach page if the will was authenticated and safeguarded against any possible alteration.In that case, the validity of the will was sustained, and consequently it was allowed toprobate.
Applying that doctrine to the instant case, we hold that, as each and every pageused of the will bears the signatures of the testator and the witnesses, the fact thatsaid signatures do not all appear on the left margin of each page does not detract fromthe validity of the will.
Turning to the second defect alleged, that is to say, the fact that the sheets ofthe document are not paged with letters, suffice it to cite the case of Unson vs. Abella(43 Phil., 494), where this court held that paging with Arabic numerals and not withletter, as in the case before us, is within the spirit of the law and is just as valid aspaging with letters.
As to the proposition that the attestation clause does not state the number ofsheets or pages of the will, which is the third defect assigned, it must be noted that thelast paragraph of the will here in question and the attestation clause, coming next to it,are of the following tenor:
"In witness whereof, I set my hand unto this will here in the town of Camalig,Albay, Philippine Islands, this 26th day of November, nineteen hundred and eighteen,composed of four sheets, including the next:
"ANTONIO MOJAL"(Signed and declared by the testator Don Antonio Mojal to be his last will and
testament in the presence of each of us, and at the request of said testator Don AntonioMojal, we signed this will in the presence of each other and the testator.)
"PEDRO CARO"SILVERIO MORCO"ZOILO MASINAS"As may be seen, the number of sheets is stated in said last paragraph of the will.
It is true that in the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was heldthat the attestation clause must state the number of sheets or pages composing the will;but when, as in the case before us, such fact, while it is not stated in the attestationclause, appears at the end of the will proper, so that no proof aliunde is necessary ofthe number of the sheets of the will, then there can be no doubt that it complies with theintention of the law that the number of sheets of which the will is composed be shown bythe document itself, to prevent the number of the sheets of the will from being undulyincreased or decreased.
With regard to the last defect point out, namely, that the testator does not appearto have signed on all the sheets of the will in the presence of the three witnesses, andthe latter to have attested and signed in all the sheets in the presence of the testatorand of each other, it must be noted that in the attestation clause above set out it issaid that the testator signed the will "in the presence of each of the witnesses" and thelatter signed "in the presence of each other and of the testator." So that, as to whetherthe testator and the attesting witnesses saw each other sign the will, such a requirementwas clearly and sufficiently complied with. What is not stated in this clause is whetherthe testator and the witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of thewill is one which cannot be proven by the mere exhibition the will unless it is stated inthe document. And this fact is expressly stated in the attestation clause now before us.But the fact of the testator and the witnesses having signed all the sheets of the willmay be proven by the mere examination of the document, although it does not say anythingabout this, and if that is the fact, as it is the instant case, the danger of fraud inthis respect, which is what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnessessigned each and every page of the will is proven by the mere examination of the signatures
in the will, the omission to expressly state such evident fact does not invalidate thewill nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. Soordered.
FIRST DIVISION[G.R. No. 17857. June 12, 1922.]In re will of Josefa Zalamea y Abella, deceased. PEDRO UNSON, petitioner-appellee,
vs. ANTONIO ABELLA ET AL., opponents-appellants.Crispin Oben for appellants.Pedro Guevara and Carlos Ledesma for appelleeD E C I S I O NVILLAMOR, J p:On July 19, 1918, Dona Josefa Zalamea y Abella, single, 60 years old, who was
residing in the municipality of Pagsanjan, Province of Laguna, executed her last will andtestament with an attached inventory of her properties, Exhibits A and A-1, in thepresence of three witnesses, who signed with her all the pages of said documents. Thetestatrix died on the 6th of January, 1921, and, as the record shows, the executorappointed in the will, Pedro Unson, filed in the Court of First Instance of Laguna on the19th of January of the same year an application for the probate of the will and theissuance of the proper letters of administration in his favor.
To said application an opposition was presented by Antonio Abella, Ignacia Abella,Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceasedZalamea was not executed in conformity with the provisions of the law, inasmuch as it wasnot paged correlatively in letters; nor was there any attestation clause in it, nor was itsigned by the testatrix and the witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants,and ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holdingthat both documents contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in theirbrief they assign three errors, which, in their opinion, justify the reversal of thejudgment appealed from.
The first error assigned by the appellants as committed by the court below is itsfinding to the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea,was executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment oferror tend to impeach the credibility of the witnesses for the proponent, specially thatof Eugenio Zalamea. We have made a carefully examination of the evidence, but have notfound anything that would justify us in disturbing the finding of the court a quo. Theattesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together withthe other witness to the will, Pedro de Jesus, they did sign each and every page of thewill and of the inventory in the presence of each other and of the testatrix, as thelatter did likewise sign all the pages of the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was notsigned by the testatrix, nor by the witnesses on the day of the execution of the will,that is, on the 19th of July, 1918, basing their contention on the testimony of AurelioPalileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of thewill had not been signed by the witnesses, nor by the testatrix on the day of itsexecution. Palileo's testimony is entirely contradicted by Gonzalo Abaya not only in thedirect, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannotprevail over that of the attesting witnesses, Gonzalo Abaya and Eugenio Zalamea. Theappellants impeach the credibility of Eugenio Zalamea, for having made a sworn declarationbefore the justice of the peace of Santa Cruz, Laguna, before the trial of this case, tothe effect that he was really one of the witnesses to the will in question, which fact wascorroborated by himself at the trial. The appellants take Zalamea's testimony inconnection with the dismissal of a criminal case against a nephew of his, in whose success
he was interested, and infer from this fact the partiality of his testimony. We deem thisallegation of little importance to impeach the credibility of the witness Zalamea,especially because his testimony is corroborated by the other attesting witness, GonzaloAbaya, and by attorney Luis Abaya, who had prepared the testament at the instance of thetestatrix. The foregoing is sufficient for us to conclude that the first assignment oferror made by the appellant is groundless.
The appellants contend that the court below erred in admitting the will to probatenotwithstanding the omission of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court thatthey had necessarily to omit the testimony of Pedro de Jesus, one of the persons whoappear to have witnessed the execution of the will, for there were reasonable grounds tobelieve that said witness was openly hostile to the proponent, inasmuch as since theannouncement of the trial of the petition for the probate of the will, said witness hasbeen in frequent communication with the contestants and their attorney, and has refused tohold any conference with the attorneys for the proponent. In reply to this, the attorneyfor the contestants, said to the court, "without discussing for the present whether or notin view of those facts (the facts mentioned by the attorneys for the petitioner), in thehypothesis that the same are proven, they are relieved from producing that witness, forwhile it is a matter not decided, it is a recognized rule that the fact that a witness ishostile does not justify a party to omit his testimony; without discussing this, I say, Imove that said statement be stricken out, and if the proponent wants these facts to standin the record, let him prove them." The court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take anyexception.
In the case of Avera vs. Garcia and Rodriquez (42 Phil., 145), recently decided bythis court, in deciding the question whether a will can be admitted to probate, whereopposition is made, upon the proof of a single attesting witness, without producing oraccounting for the absence of the other two, it was said; while it is undoubtedly truethat an uncontested will may be proved by the testimony of only one of the three attestingwitnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared afteran elaborate examination of the American and English authorities that when a contest isinstituted, all of the attesting witnesses must be examined, if alive and within reach ofthe process of the court.
"In the present case no explanation was made at the trial as to why all three of theattesting witnesses were not produced, but the probable reason is found in the fact that,although the petition for the probate of this will had been pending from December 21,1917, until the date set for the hearing, which was April 5, 1919, no formal contest wasentered until the very day set for the hearing; and it is probable that the attorney forthe proponent, believing in good faith that probate would not be contested, repaired tothe court with only one of the three attesting witnesses at hand, and upon finding thatthe will was contested, incautiously permitted the case to go to proof without asking fora postponement of the trial in order that he might produce all the attesting witnesses.
"Although this circumstance may explain why the three witnesses were not produced,it does not in itself supply any basis for changing the rule expounded in the case abovereferred to; and were it not for a fact now to be mentioned, this court would probably becompelled to reverse this case on the ground that the execution of the will had not beenproved by a sufficient number of attesting witnesses.
"It appears, however, that this point was not raised by the appellant in the lowercourt either upon the submission of the cause for determination in that court or upon theoccasion of the filing of the motion for a new trial. Accordingly it is insisted for theappellee that this question cannot now be raised for the first time in this court. Webelieve this point is well taken, and the first assignment of error must be declared notto be well taken. This exact question has been decided by the Supreme Court of Californiaadversely to the contention of the appellant, and we see no reason why the same rule ofpractice should not be observed by us.
(Estate of McCarty, 58 Cal., 335, 337.)"There are at least two reasons why the appellate tribunal are disinclined to permit
certain questions to be raised for the first time in the second instance. In the firstplace it eliminates the judicial criterion of the Court of First Instance upon the pointthere presented and makes the appellate court in effect a court of first instance withreference to that point, unless the case is remanded for a new trial. In the second place,it permits, if it does not encourage, attorneys to trifle with the administration ofjustice by concealing from the trial court and from their opponent the actual point upon
which reliance is placed, while they are engaged in other discussions more simulated thanreal. These considerations are, we think, decisive.
"In ruling upon the point above presented we do not wish to be understood as layingdown any hard and fast rule that would prove an embarrassment to this court in theadministration of justice in the future. In one way or another we are constantly hereconsidering aspects of cases and applying doctrines which have escaped that attention ofall persons concerned in the litigation below; and this is necessary if this court is tocontribute the part due from it in the correct decision of the cases brought before it.What we mean to declare is that when we believe that substantial justice has been done inthe Court of First Instance, and the point relied on for reversal in this court appears tobe one which ought properly to have been presented in that court, we will in the exerciseof a sound discretion ignore such question upon appeal; and this is the more proper whenthe question relates to a defect which might have been cured in the Court of FirstInstance if attention had been called to it there. In the present case, if the appellanthad raised this question in the lower court, either at the hearing or upon a motion for anew trial, that court would have had the power, and it would have been its duty,considering the tardy institution of the contest, to have granted a new trial in orderthat all the witnesses to the will might be brought into court. But in stead of thuscalling the error to the attention of the court and his adversary, the point is firstraised by the appellant in this court. We hold that this is too late.
"Properly understood, the case of Cabang vs. Delfinado, supra, contains nothinginconsistent with the ruling we now make, for it appears from the opinion in that casethat the proponent of the will had obtained an order for a republication and new trial forthe avowed purpose of presenting the two additional attesting witnesses who had not beenpreviously examined, but nevertheless subsequently failed without any apparent reason totake their testimony. Both parties in that case were therefore fully apprised that thequestion of the number of witnesses necessary to prove the will was in issue in the lowercourt."
In the case at bar, we do not think this question properly to have been raised atthe trial, but in the memorandum submitted by the attorney for the appellants to the trialcourt, he contended that the will could not be admitted to probate because one of thewitnesses to the will was not produced, and that the voluntary non-production of thiswitness raises a presumption against the pretension of the proponent. The trial courtfound that the evidence introduced by the proponent,. consisting of the testimony of thetwo attesting witnesses and the other witness who was present at the execution, and hadcharge of the preparation of the will and the inventory, Exhibits A and A-1, wassufficient. As announced in Cabang vs. Delfinado, supra, the general rule is that, whereopposition is made to the probate of a will, the attesting witnesses must be produced. Butthere are exceptions to this rule, for instance, when a witness is dead, or cannot beserved with process of the court, or his reputation for truth has been questioned or heappears hostile to the cause of the proponent. In such cases, the will may be admitted toprobate without the testimony of said witness, if, upon the other proofs adduced in thecase, the court is satisfied that the will has been duly executed. Wherefore, we find thatthe non-production of the attesting witness, Pedro de Jesus, as accounted for by theattorney for the proponent at the trial, does not render void the decree of the court aquo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to theapplication, this would not by itself have change the result reached by the court a quo,for section 632 of the Code of Civil Procedure provides that a will can be admitted toprobate, notwithstanding that one or more witnesses do not remember having attested it,provided the court is satisfied upon the evidence adduced that the will has been executedand signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of theinventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause init, and its paging is made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1,and at the bottom of said will, the testatrix Josefa Zalamea says:
"In witness whereof, I sign this will composed of ten folios including the pagecontaining the signatures and the attestation of the witnesses; I have likewise signed theinventory attached to this will composed of ten folios in the presence of Messrs. GonzaloAbaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna,Philippine Islands, this 19th of July, 1918."
And the attestation clause is as follows:
"The foregoing will composed of ten folios including this one whereunto we haveaffixed our signatures, as well as the inventory of the properties of Dona Josefa Zalameay Abella, was read to Dona Josefa Zalamea y Abella, and the latter affixed her name toname the last, and each and every page of this will and inventory composed of ten foliosin our presence; and she declared this to be her last will and testament and at herrequest we have affixed hereunto our respective signatures in her presence and in thepresence of each other as witnesses to the will and the inventory this 19th of July, 1918,at Pagsanjan, Laguna, P. I.
"GONZALO ABAYA,"EUGENIO ZALAMEA,"PEDRO DE JESUS."In view of the fact that the inventory is referred to in the will as an integral
part of it, we find that the foregoing attestation clause is in compliance with section 1of Act No. 2645, which requires this solemnity for the validity of a will, and makesunnecessary any other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere tothe doctrine announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided bythis court. In that case the validity of the will was assailed on the ground that itsfolios were paged with the letters A, B, C, etc., instead of with he letters "one," "two,""three," etc. It was held that this way of numbering the pages of a will is in compliancewith the spirit of the law, inasmuch as either one of these methods indicates thecorrelation of the pages and serves to prevent the abstraction of any of them. In thecourse of the decision, we said: "It might be said that the object of the law in requiringthat the paging be made in letters is to make falsification more difficult, but it shouldbe noted that since all the pages of the testament are signed at the margin by thetestatrix and the witnesses, the difficulty of forging the signatures in either caseremains the same. In other words the more or less degree of facility to imitate thewriting of the letters A, B, C, etc., does not make for the easiness to forge thesignatures. And as in the present case there exists the guaranty of the authenticity ofthe testament, consisting in the signatures on the left margins of the testament and thepaging thereof as declared in the attestation clause, the holding of this court in Abanganvs. Abangan (40 Phil., 476), might as well be repeated:
"'The object of the solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid substitution of wills and testaments and toguaranty their truth and authenticity. Therefore the laws on this subject should beinterpreted in such a way as to attain these primordial ends. But, on the other hand, alsoone must not lose sight of the fact that it is not the object of the law to restrain andcurtail the exercise of the right to make a will. So when an interpretation already givenassures such ends, any other interpretation whatsoever, that adds nothing but demands morerequisites entirely unnecessary, useless, and frustrative of the testator's last will,must be disregarded.'
"In that case the testament was written on one page, and the attestation clause onanother. Neither one of these pages was numbered in any way, and it was held: 'In a willconsisting of two sheets the first of which contains all the testamentary dispositions andis signed at the bottom by the testator and three witnesses and the second contains onlythe attestation clause and is signed also at the bottom by the three witnesses, it is notnecessary that both sheets be further signed on their margins by the testator and thewitnesses, or be paged.'
"This means that, according to the particular case, the omission of paging does notnecessarily render the testament invalid.
"The law provides that the numbering of the pages should be in letters placed on theupper part of the sheet, but if the paging should be placed in the lower part, would thetestament be void for this sole reason? We believe not. The law also provides that thetestator and the witnesses must sign the left margin of each of the sheets of thetestament; but if they should sign on the right margin, would this fact also annul thetestament? Evidently not. This court has already held in Avera vs. Garcia and Rodriguez(42 Phil., 145):
"'It is true that the statute says that the testator and the instrumental witnessesshall sign their names on the left margin of each and every page; and it is undeniablethat the general doctrine is to the effect that all statutory requirements as to theexecution of wills must be fully complied with. The same doctrine is also deducible fromcases heretofore decided by this court.
"'Still some details at times creep into legislative enactments which are so trivialthat it would be absurd to suppose that the Legislature could have attached any decisiveimportance to them. The provision to the effect that the signatures of the testator andwitnesses shall be written on the left margin of each page — rather than on the rightmargin — seems to be of this character. So far as concerns the authentication of the will,and of every part thereof, it can make no possible difference whether the names appear onthe left or on the right margin, provided they are on one or the other. In Caraig vs.Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared awill void which was totally lacking in the signatures required to be written on itsseveral pages; and in the case of Re Estate of Saguinsin (41 Phil., 875), a will waslikewise declared void which contained the necessary signatures on the margin of each leaf(folio), but not in the margin of each page containing written matter.'
"We do not desire to intimate that the numbering in letters is a requisite of noimportance. But since its principal object is to give the correlation of the pages, wehold that this object may be attained by writing one, two, three, etc., as well as bywriting A, B, C, etc."
We see no reason why the same rule should not be applied where the paging is inArabic numerals, instead of in letters, as in the inventory in question. So that, adheringto the view taken by this court in the case of Abangan vs. Abangan, and followed in Aldabavs. Roque, with regard to the appreciation of the solemnities of a will, we find that thejudgment appealed from should be, as is hereby, affirmed with the costs against theappellant. So ordered.
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EN BANC[G.R. No. 15025. March 15, 1920.]
In the matter of the estate of REMIGIA SAGUINSIN, deceased. ARCADIO DEL ROSARIO,applicant-appellant, JOSE A. DEL PRADO, ET AL., legatees-appellants, vs. RUFINA SAGUINSIN,opponent-appellee.
Fernando Manikis and Gibbs, McDonough & Johnson for applicant and appellant.No appearance for legatees and appellants.Claro M. Recto for appellee.D E C I S I O NARELLANO, C.J p:There was presented in the Court of First Instance of the city of Manila for
allowance an instrument which the petitioner calls the will of Remigia Saguinsin. It is amanuscript signed by the alleged testatrix and three witnesses on October 3, 1918, theconclusion of which says: "I, the testatrix, sign in the presence of the witnesses thiswill written by D. Lino Mendoza at my request and under my direction." (Yo, la testadora,firmo en presencia de los testigos este testamento que ha escrito D. Lino Mendoza a miruego y bajo mi direccion.) — Then follows a signature and then these expressions: "Thetestatrix signed in our presence and each of us signed in the presence of the others." (Latestadora ha firmado en nuestra presencia y cada uno de nosotros en presencia de losdemas.) "Witness who wrote this will at the request and under the free and voluntarypersonal direction of the testatrix herself." (Testigo que escribio este testamento aruego y bajo la libre y voluntaria direccion personal de la misma testadora.) (Sgd.) LinoMendoza — "Attesting witnesses." (Testigos del testamento.) Then come three signatures.
These three signatures together with that of the alleged testatrix are written alsoon the left margin of the first page or folio and on the third page or second folio, butnot on the second page or reverse side of the first page where, as is seen, the manuscriptis continued, the second folio not containing anything but the date and the end of themanuscript.
Under these conditions the instrument was impugned by a sister of the allegedtestatrix and after the taking of the declaration of the authors of the signatures whichappear three times and in different parts of the manuscript, the court declared that thedocument attached to the record could not be allowed as a will.
Certain persons who allege themselves to be legatees appealed jointly with thelawyer for the petitioner.
And upon considering the case on appeal, this court decides:That, in conformity with Act No. 2645, amendatory to section 618 of the Code of
Civil Procedure, the concluding part of the will does not express what that law, underpain of nullity, requires. Section 618, as amended, says:
"The attestation shall state the number of sheets or pages used upon which the willis written . . .." None of these requirements appear in the attesting clause at the end ofthe document presented. The second page, i. e., what is written on the reverse side of thefirst, engenders the doubt whether what is written thereon was ordered written by thealleged testatrix or was subsequently added by the same hand that drew the first page andthe date that appears on the third. With this non-fulfillment alone of Act No. 2645 it isimpossible to allow the so-called will which violates said law.
That besides this violation there is another as evident as the preceding. Said ActNo. 2645 provides: "The testator or the person requested by him to write his name and theinstrumental witnesses of the will shall also sign, as aforesaid, each and every pagethereof, on the left margin, and said pages shall be numbered correlatively in lettersplaced on the upper part of each sheet." The English text differs from the Spanish text:the former says only pages (paginas) while the latter puts (hojas). "Hoja," according tothe Diccionario de la Academia, "is with respect to books or notebooks folio." Accordingto the same dictionary "pagina (page) is each one of the two faces or planes of the leafof a book or notebook: that which is written or printed on each page, for example I haveread only two pages of this book." Two pages constitute one leaf. One page represents onlyone-half of one leaf. The English text requires that the signature which guarantees thegenuineness of the testament shall be placed on the left hand margin of each page and thateach page should be numbered by letter in the upper part this requirement is entirelylacking on the second page that is, on the reverse side of the first. According to the oldmethod of paging "folio 1 1/2 y su vto." that is, first folio and the reverse side, shouldhave been stated, and the second page would then have been included in the citation.By ;the failure to comply with this, requisite the law has been obviously violated. In theEnglish text the word "pages" does not leave any room for doubt and it is invariably usedin the text of the law, whereas in the Spanish text, "hoja" and "pagina" are usedindifferently as may be seen in the following part which says: "El atestiguamiento hara
constar el numero de hojas o paginas utiles en que esta extendido el testamento." Thisfailure to comply with the law also vitiates the will and invalidates it, as the secondpage is lacking in authenticity.
This is a defect so radical that there is no way by which what is written on thereverse side of the first folio may be held valid. It is possible that this documentconsists of only the two folios numbered 1 and 2, and that on the reverse side of number 1nothing may have been written upon the order of the testatrix, the testament ending at thefoot of the first folio with the legacy "To my nephew Catalino Ignacio, P200" (A misobrino Catalino Ignacio doscientos pesos) and from that part then immediately followsfolio No. 2 — "Manila a tres de Octubre de mil novecientos diez y ocho. — Yo la testadorafirmo en presencia etc." (Manila, October 3, 1918. — I, the testatrix, sign in thepresence of etc.) There is nothing which guarantees all the contents of page 2. The marginof this page is absolutely blank. There is nothing which gives the assurance that thetestatrix ordered the insertion of all the contents of page 2. It may very well be that itwas subsequently added thereby substituting the will of the testatrix, a result for theprevention of which this manner of authenticity by affixing the signature on each page andnot merely on each folio was provided for by law. This defect is radical and totallyvitiates the testament. It is not enough that the signatures guaranteeing authenticityshould appear upon two folios or leaves; three pages having been written, the authenticityof all three of them should be guaranteed with the signatures of the alleged testatrix andher witnesses. The English text which requires the signing of pages and not merely leavesor folios should prevail. It is so provided in section 15 of the Administrative Code (ActNo. 2711).
The judgment appealed from is affirmed, with costs of this instance against theappellant.
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SECOND DIVISION[G.R. No. 15566. September 14, 1921.]EUTIQUIA AVERA, petitioner-appellee, vs. MARINO GARCIA, and JUAN RODRIGUEZ, as
guardian of the minors Cesar Garcia and Jose Garcia, objectors-appellants.Dionisio Villanueva for appellants.Marcelino Lontok for appellee.D E C I S I O NSTREET, J p:In proceedings in the court below, instituted by Eutiquia Avera for probate of the
will of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, thelatter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon thedate appointed for the hearing, the proponent of the will introduced one of the threeattesting witnesses who testified — with details not necessary to be here specified — thatthe will was executed with all necessary external formalities, and that the testator wasat the time in full possession of disposing faculties. Upon the latter point the witnesswas corroborated by the person who wrote the will at the request of the testator. Two of
the attesting witnesses were not introduced, nor was their absence accounted for by theproponent of the will.
When the proponent rested the attorney for the opposition introduced a singlewitness whose testimony tended to show in a vague and indecisive manner that at the timethe will was made the testator was so debilitated as to be unable to comprehend what hewas about.
After the cause had been submitted for determination upon the proof thus presented,the trial judge found that the testator at the time of the making of the will was of soundmind and disposing memory and that the will had been properly executed. He accordinglyadmitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will,and the only errors here assigned have reference to the two following points, namely,first, whether a will can be admitted to probate, where opposition is made, upon the proofof a single attesting witness, without producing or accounting for the absence of theother two; and, secondly, whether the will in question is rendered invalid by reason ofthe fact that the signature of the testator and of the three attesting witnesses arewritten on the right margin of each page of the will instead of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will may beproved by the testimony of only one of the three attesting witnesses, nevertheless inCabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate examinationof the American and English authorities that when a contest is instituted, all of theattesting witnesses must be examined, if alive and within reach of the process of thecourt.
In the present case no explanation was made at the trial as to why all three of theattesting witnesses were not produced, but the probable reason is found in the fact that,although the petition for the probate of this will had been pending from December 21,1917, until the date set for the hearing, which was April 5, 1919, no formal contest wasentered until the very day set for the hearing; and it is probable that the attorney forthe proponent, believing in good faith that probate would not be contested, repaired tothe court with only one of the three attesting witnesses at hand, and upon finding thatthe will was contested, incautiously permitted the case to go to proof without asking fora postponement of the trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, itdoes not in itself supply any basis for changing the rule expounded in the case abovereferred to; and were it not for a fact now to be mentioned, this court would probably becompelled to reverse this case on the ground that the execution of the will had not beenproved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lowercourt either upon the submission of the cause for determination in that court or upon theoccasion of the filing of the motion for a new trial. Accordingly it is insisted for theappellee that this question cannot now be raised for the first time in this court. Webelieve this point is well taken, and the first assignment of error must be declared notto be well taken. This exact question has been decided by the Supreme Court of Californiaadversely to the contention of the appellant, and we see no reason why the same rule ofpractice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to permitcertain questions to be raised for the first time in the second instance. In the firstplace it eliminates the judicial criterion of the Court of First Instance upon the pointthere presented and makes the appellate court in effect a court of first instance withreference to that point, unless the case is remanded for a new trial. In the second place,it permits, if it does not encourage, attorneys to trifle with the administration ofjustice by concealing from the trial court and from their opponent the actual point uponwhich reliance is placed, while they are engaged in other discussions more simulated thanreal. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as layingdown any hard and fast rule that would prove an embarrassment to this court in theadministration of justice in the future. In one way or another we are constantly hereconsidering aspects of cases and applying doctrines which have escaped the attention ofall persons concerned in the litigation below; and this is necessary if this court is tocontribute the part due from it in the correct decision of the cases brought before it.What we mean to declare is that when we believe that substantial justice has been done inthe Court of First Instance, and the point relied on for reversal in this court appears tobe one which ought properly to have been presented in that court, we will in the exercise
of a sound discretion ignore such question upon appeal; and this is the more proper whenthe question relates a defect which might have been cured in the Court of First Instanceif attention had been called to it there. In the present case, if the appellant had raisedthis question in the lower court, either at the hearing or upon a motion for a new trial,that court would have had the power, and it would have been its duty, considering thetardy institution of the contest, to have granted a new trial in order that all thewitnesses to the will might be brought into court. But instead of thus calling the errorto the attention of the court and his adversary, the point is first raised by theappellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothinginconsistent with the ruling we now make, for it appears from the opinion in that casethat the proponent of the will had obtained an order for a republication and new trial forthe avowed purpose of presenting the two additional attesting witnesses who had not beenpreviously examined, but nevertheless subsequently failed without any apparent reason totake their testimony. Both parties in that case were therefore fully apprised at thequestion of the number of witnesses necessary to prove the will was in issue in the lowercourt.
The second point involved in this case is whether, under section 618 of the Code ofCivil Procedure, as amended by Act No. 2645, it is essential to the validity of a will inthis jurisdiction that the names of the testator and the instrumental witnesses should bewritten on the left margin of each page, as required in said Act, and not upon the rightmargin, as in the will now before us; and upon this we are of the opinion that the will inquestion is valid. It is true that the statute says that the testator and the instrumentalwitnesses shall sign their names on the left margin of each and every page; and it isundeniable that the general doctrine is to the effect that all statutory requirements asto the execution of wills must be fully complied with. The same doctrine is also deduciblefrom cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivialthat it would be absurd to suppose that the Legislature could have attached any decisiveimportance to them. The provision to the effect that the signatures of the testator andwitnesses shall be written on the left margin of each page — rather than on the rightmargin — seems to be of this character. So far as concerns the authentication of the will,and of every part thereof, it can make no possible difference whether the names appear onthe left or no the right margin, provided they are on one or the other. In Caraig vs.Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared awill void which was totally lacking in the signatures required to be written on itsseveral pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will waslikewise declared void which contained the necessary signatures on the margin of each leaf(folio), but not in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page, andthe only point of deviation from the requirement of the statute is that these signaturesappear in the right margin instead of the left. By the mode of signing here adopted everypage and provision of the will is authenticated and guarded from possible alteration inexactly the same degree that it would have been protected by being signed in the leftmargin; and the resources of casuistry could be exhausted without discovering theslightest difference between the consequences of affixing the signatures in one margin orthe other.
The same could not be said of a case like that of Estate of Saguinsin, supra, whereonly the leaves, or alternate pages, were signed and not each written page; for asobserved in that case by our late lamented Chief Justice, it was possible that in the willas there originally executed by the testatrix only the alternative pages had been used,leaving blanks on the reverse sides, which conceivably might have been filled insubsequently.
The controlling considerations on the point now before us were well stated in Rewill of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. JusticeAvanceña, in a case where the signatures were placed at the bottom of the page and not inthe margin, said:
"The object of the solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid substitution of wills and testaments and toguarantee their truth and authenticity. Therefore the laws on this subject should beinterpreted in such a way as to attain these primordial ends. But, on the other hand, alsoone must not lose sight of the fact that it is not the object of the law to restrain andcurtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands morerequisites entirely unnecessary, useless and frustrative of the testator's last will, mustbe disregarded."
In the case before us, where ingenuity could not suggest any possible prejudice toany person, as attendant upon the actual deviation from the letter of the law, suchdeviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgmentappealed from will be affirmed. It is so ordered, with costs against the appellants.
EN BANC
G.R. No. L-14322 February 25, 1960
In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased, vs.DIOSDADA ALBERASTINE, petitioner-appellant.
Agustin Y. Kintanar for appellant.
BAUTISTA ANGELO, J.:
This concerns the probate of a document which purports to be the last will and testament of one Petronila Tampoy. After the petition was published in accordance with law and petitioner had presented oral and documentaryevidence, the trial court denied the petitionon the ground that the left hand margin of the first of the will does not bear the thumbmark of the testatrix. Petitioner appealed from this ruling but the Court of Appeals certified the case to us because it involves purely a question of law.
The facts of this case as found by the trial court as follows:
De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a BonigfacioMi�oza que la leyera el testamento Exhibito A y la expicara su contenido en su casaen al calle San Miguel, del municipio de Argao, provincia de Cebu, en 19 de noviember de 1939, y lasi lo hizo Bonifacio Mi�oza en presencia de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pe�a y Simeon Omboy, y despues de conformarse con el contendido del testamento, ella rogo a Bonifacio Mi�oza, que escribiera su nombre al pie del testamento, en la pagina segunda, y asilo hizo Bonifacio Mi�oza, y despues ella estampo su marca digital entra su nombre yapelido en presencia de todos y cada uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pe�a y Simeon Omboy y de Bonifacio Mi�oza, y despues, Bonifacio Mi�oza firmo tambien al pie del todos y cada uno de lo tres testigos arriba nombrados. La testadora asi como Bonifacio Mi�oza parte de la primera pagina del testamento qeu se halla compuesto de dos paginas. Todos y cada uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pe�a y Simeon Omboy, firmaron al pie de la clausula de atestiguamiento que esta escrita en la pagina segunda del testamento y en la margen izquierda de la misma pagina 2 y de la pagina primera en presencia de la testadora, de Bonifacio Mi�oza, del abogado Kintanar y de todos y cada uno de ellos. El testamento fue otorgado por la testadoralibre y expontaneament, sin haber sido amenazada, forzada o intimidada, y sin haberse ejercido sobre ella influencia indebida, estando la misma en pleno uso de sus facultades mentales y disfrutando de buena salud. La testadore fallecio en su case en Argao en 22 de febrero de 1957 (Vease certificado de defuncion Exhibito B). La heredera instituida en el testamento, Carmen Alberastine, murio dos semanas despues que la testadora, o sea en 7 de Marzo de 1957, dejando a su madre, la solicitante Diosdada Alberastine.
The above facts are not controverted, there being no opposition to the probate of the will. However, the trial court denied the petition on the ground that the first page of the will does not bear the thumbmark of the testatrix. Petitioner now prays that this ruling be set aside for the reason that, although the first page of the will does not bearthe thumbmark of the testatrix, the same however expresses her true intention to givethe property to her whose claims remains undisputed. She wishes to emphasize that no one has filed any to the opposition to the probate of the will and that while the first page does not bear the thumbmark of the testatrix, the second however bears her thumbmark and both pages were signed by the three testimonial witnesses. Moreover, despite the fact that the petition for probate is unoppossed, the three testimonial witnesses testified and manifested to the court that the document expresses the true and voluntary will of the deceased.
This contention cannot be sustained as it runs counter to the express provision of the law. Thus, Section 618 of Act 190, as amended, requires that the testator sign the will and each and every page thereof in the presence of the witnesses, and that the latter signthe will and each and every page thereof in the presence of the testator and of each other, which requirement should be expressed in the attestation clause. This requirement is mandatory, for failure to comply with it is fatal to the validity of the will (Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes prescribing the formalities to be observed in the execution of wills are very strictly construed. As stated in 40 Cyc., at page 1097, 'A will must be executed in accordance with the statutoryrequirements; otherwise it is entirely void.' All these requirements stand as of equal importance and must be observed, and courts cannot supply the defective execution of a will. No power or discretion is vested in them, either to superadd other conditions or dispence with those enumerated in the statutes" (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Sa�o vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481).
Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the testatrix on its first page even if it bears the signature of the three instrumental witnesses, we cannot escape the conclusion that the same fails to comply withthe law and therefore, cannot be admitted to probate.
Wherefore, the order appealed from is affirmed, without pronouncement as to costs.
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FIRST DIVISION[G.R. No. 17304. May 22, 1922.]In re will of Maria Roque y Paraiso, deceased. CEFERINO ALDABA, petitioner-appellee,
vs. LUDOVICO ROQUE, opponent-appellant.Lucero & Tengco for appellant.Vicente Platon for appellee.D E C I S I O NVILLAMOR, J p:It appears from the record of the case that on July 9 , 1918, Maria Roque y Paraiso,
the window of Bruno Valenzuela, resident of the barrio of Mambog, municipality of Malolos.Province of Bulacan, executed her last will and testament in the Tagalog dialect with thehelp of Vicente Platon and in the presence of three witnesses who signed the attestationclause and each of the four pages of the testament. Maria Roque died on December 3, 1919,and when her will was filed in court for probate, it was contested by Ludovico Roque onthe ground that it had not been prepared nor executed in conformity with the requirementsand solemnities prescribed by law.
After due proceedings had been had, the Court of First Instance of Bulacan by itsdecision rendered on February 27th of the following year, pronounced the testament inquestion valid, and ordered its probate, appointing Ceferino Aldaba as the administratorof the estate.
The errors assigned by the appellant are two, to wit: "That each and every folio ofthe said testament is not paged correlatively in letters," and "that the said will lacksthe attestation clause required by law."
We have examined document Exhibit 4 which is the will in question and we find at theend thereof the following in Tagalog which translated into English reads:
"This document expresses my last and spontaneous will, and is my last will andtestament, which was drawn by the lawyer, Don Vicente Platon, at my direction, andeverything contained in this testament has been ordained and directed by me to saidVicente Platon in order that it might embodied in this testament, and after this testamenthas been drawn up, I directed him to read it so that I might hear all its contents, and Ihave heard and understood all the contents of this document which is my last willwherefore, and not knowing how to write, I have requested Don Vicente Platon to write andsign my name in my stead hereon; I declare that this testament is composed of four sheets,actually used, that the sheets are paged with the letters A, B, C, and D, and above myname I have placed the thumb mark of my right hand in the presence of the subscribingwitnesses, and that all the witnesses have signed in my presence and of each other here atMalolos, Bulacan, this 9th day of the month of July, 1918; and I also declare that at myrequest Don Vicente Platon has written my name on the left margin of all the pages of thistestament, in the presence of the witnesses, and all the witnesses have also signed allthe pages of this testament on the left margin in my presence and that of each other.
"X (Her thumb mark)"MARIA ROQUE Y PARAISO,"Per VICENTE PLATON."REGINO E. MENDOZA,"Witness."IGNACIO ANIAG,"Witness."CEFERINO ALDABA,"Witness."In reality, it appears that it is the testatrix who makes the declaration about the
points contained in the above described paragraph; however, as the witnesses, together
with the testatrix, have signed the said declaration, we are of the opinion and so holdthat the words above quoted of the testament constitute a sufficient compliance with therequirements of section 1 of Act. No. 2645 which provides that:
"The attestation shall state the number of sheets or pages used, upon which the willis written, and the fact that the testator signed the will and every page thereof, orcaused some other person to write his name, under his express direction, in the presenceof three witnesses, and the latter witnessed and signed the will and all the pages thereofin the presence of the testator and of each other."
In regard to the other assignment of error, to wit, that each of the folios of thesaid testament is not paged correlatively in letters "one," "two", "three", etc., but onlywith the letters A, B, C, etc., we are of the opinion that this method of indicating thepaging of the testament is a compliance with the spirit of the law, since either one ofthe two ways above-mentioned indicates the correlation of the pages and serves to preventthe loss of any of them. It might be said that the object of the law in requiring that thepaging be made in letters is to make falsification more difficult, but it should be notedthat since all the pages of the testament are signed at the margin by the testatrix andthe witnesses, the difficulty of forging the signatures in either case remains the same.In other words the more or less degree of facility to imitate the writing of the lettersA, B, C, etc., does not make for the easiness to forge the signature. And as in thepresent case there exists the guaranty of the authenticity of testament, consisting in thesignatures on the left margins of the testament and the paging thereof as declared in theattestation clause, the holding of this court in Abangan vs. Abangan (40 Phil., 476),might as well be repeated:
"The object of the solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid substitution of wills and testaments and toguarantee their truth and authenticity. Therefore the laws on this subject should beinterpreted in such a way as to attain these primordial ends. But, on the other hand alsoone must not lose sight of the fact that it is not the object of the law to restrain andcurtail the exercise of the right to make a will. So when an interpretation already givenassures such ends, any other interpretation whatsoever, that adds nothing but demands morerequisites entirely unnecessary, useless, and frustrative of the testator's last will,must be disregarded."
In that case the testament was written on one page, and the attention clause onanother. Neither one of these pages was numbered in any way; and it was held:
"In a will consisting of two sheets the first of which contains all the testamentarydispositions and is signed at the bottom by the testator and three clause and is signedalso at the bottom by the three witnesses, it is not necessary that both sheets be furthersigned on their margins by that both sheets be further signed on their margins by thetestator and the witnesses, or be paged."
This means that, according to the particular case, the omission of paging does notnecessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on theupper part of the sheet, but if the paging should be placed in the lower part, would thetestament be avoid for this sole reason? We believe not. The law also provides that thetestator and the witnesses must sign the left margin of each of the sheets of thetestament; but if they should sign on the right margin, would this fact also annual thetestament? Evidently not. This court has already held in Avera vs. Garcia and Rodriguez(42 Phil., 145):
"It is true that the statute says that the testator and the instrumental witnessesshall their names on the left margin of each and every page: and it is undeniable that thegeneral doctrine, is to the effect that all statutory requirements as to the executionwills must be fully complied with. The same doctrine is also deducible from casesheretofore decided by this court.
"Still some details at times creep into legislative enactments which are so trivialthat it would be absurd to suppose that the Legislature could have attached any decisiveimportance to them. The provision to the effect that the importance to them. The provisionto the effect that the signatures of the testator and witnesses shall be written on theleft margin of each page — rather than on the right margin — seems to be of thischaracter. So far as concerns the authentication of the will, and of every part thereof,it can make no possible difference whether the names appear on the left or on the rightmargin, provided they are No. 12558, decided March 23, 1918, not reported), this courtdeclared a will which was totally lacking in the signatures required to be written on itsseveral pages; and in the case of Re Estate of Saguinsin (41 Phil., 875), a will was
likewise declared void which contained the necessary signatures on the margin of each leaf(folio), but not on the margin of each page containing written matter."
We do not desire to intimate that the numbering in letters is a requisite of noimportance. But since its principal object may be attained by writing "one," "two,""three," etc., as well as by writing A, B, C, etc. Following, therefore, the viewmaintained by this court in the case of Abangan vs. Abangan, supra, as regards theappreciation of the solemnities of a testament, we decide that the judgment appealed frommust be, as is hereby, affirmed with costs against the appellant. So ordered.
SECOND DIVISION[G.R. No. L-21151. February 25, 1924.]
In re will of Antonio Vergel de Dios, deceased. RAMON J. FERNANDEZ, petitioner-appellant, HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants, vs. FERNANDOVERGEL DE DIOS ET AL., opponents-appellees.
ROMUALDEZ, J p:The question in this case is as to the validity of the document Exhibit A as a will,
which was propounded by Ramon J. Fernandez for probate, and contested by Fernando Vergelde Dios and Francisco, Ricardo and Virgilio Rustia, the Court of First Instance of Manilahaving denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court inholding the attestation fatally defective and in not finding Act No. 2645 void.
The facts attributed to the will by the contestants are as follows, to wit:(a) It was not sufficiently proven that the testator knew the contents of the
will.(b) The testator did not sign all the pages of the will.(c) He did not request anybody to attest the document as his last will.(d) He did not sign it in the presence of any witnesses.(e) The witnesses did not sign it in the presence of the testator, or of each
other, nor with knowledge on the part of the testator that they were signing his will.(f) The witnesses did not sign the attestation clause before the death of the
testator.(g) This clause was written after the execution of the dispositive part of the
will and was attached to the will after the death of the testator.(h) The signatures of the testator on page 3 of Exhibit A are not authentic.The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the
testator, the latter's mind was perfectly sane and he understood it; that he signed allthe pages of the will proper, although he did not sign the page containing the attestationclause; that while he did not personally call the witnesses, yet the latter were invitedby Attorney Lopez Lizo to act as such in his presence. The law does not require that thetestator precisely be the person to request the witnesses to attest his will. It was alsosufficiently established in the record, besides being stated in the attestation clause,that the testator signed the will in the presence of the three witnesses and that thelatter, in turn, signed it in the presence of the testator and of each other, the testatorknowing that the witnesses were signing his will; that the witnesses signed theattestation clause before the death of the testator; that this clause, with the names ofthe witnesses in blank, was prepared before the testator signed the will, and that thesheet containing said clause, just as those of the will proper, was a loose sheet, andthat all the four sheets of which the will Exhibit A was actually composed were kepttogether and are the very ones presented in this case; and finally, that the signatures ofthe testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those mentionedby the opponents, and it having been proven that the testator executed said will in alanguage known by him and consciously, freely and spontaneously, it would seem unnecessaryto go further, and the matter might be brought to a close right here, by holding the willin question valid and allowable to probate, were it not for the fact that the trial courtand the opponents questioned the sufficiency and validity of the attestation clausebecause the sheet on which it is written is not numbered, and it is not stated there thatthe testator signed on the margin of each sheet of the will in the presence of the threewitnesses, or that the latter signed it in the presence of the testator and of each other,specially because said attestation clause is not signed by the testator either at themargin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true thatit does not appear on the upper part of the sheet, but it does appear in its text, thepertinent part of which is copied hereinafter, with the words, having reference to thenumber of sheets of the will, underscored, including the page number of the attestation:
". . . We certify that the foregoing document written in Spanish, a language knownby the testator Antonino Vergel de Dios, consisting of three sheets actually used,correlatively enumerated, besides this sheet . . ."
If, as stated in this clause, the foregoing document consists of three sheets,besides that of the clause itself, which is in singular, it is clear that such a sheet ofthe attestation clause is the fourth and that the will, including said sheet, has foursheets. This description contained in the clause in question constitutes substantialcompliance with the requirements prescribed by the law regarding the paging. So it washeld by this Court in the case of Abangan vs. Abangan (40 Phil., 476), where the sheet
containing the attestation, as well as the preceding one, was also not paged. Furthermore,the law, as we shall see later on, does not require that the sheet containing nothing butthe attestation clause, wholly or in part, be numbered or paged. Consequently this lack ofpaging on the attestation sheet does not take anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated the testatorsigned on the margin of each sheet of the will, in the presence of the witnesses and thelatter in the presence of each other, let us see what is said in said clause on thispoint, and to this end its pertinent part is hereinafter transcribed and is as follows:
". . . and he (the testator) signed at the bottom of the aforesaid will in ourpresence and we at his request did the same in his presence and in that of each other aswitnesses to the will, and lastly, the testator, as well as we, as witnesses, signed inthe same manner on the left margin of each sheet." (Italics ours.)
The underscored phrase "in the same manner" cannot in the instant case mean,and it in fact means nothing, but that the testator and the witnesses signed on the leftmargin of each sheet of the will "in the same manner" in which they signed at the bottomthereof, that is, the testator in the presence of the witnesses and the latter in thepresence of the testator and of each other. This phrase in the same manner cannot, in viewof the context of the pertinent part, refer to another thing, and was used here as asuppletory phrase to include everything and avoid the repetition of a long and difficultone, such as what is meant by it. The same section 618 of the Code of Civil Procedure, inorder to avoid the repetition of the same long phrase about the testator having signed inthe presence of the witnesses and the latter in the presence of each other, resorts to asimilar expression in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheetcontaining the attestation clause, this point was already decided in the above cited caseof Abangan vs. Abangan, where this court held that:
"The testator's signature is not necessary in the attestation clause because this,as its name implies, appertains only to the witnesses and not to the testator."
In that case of Abangan vs. Abangan it was held that the signature of the testatoris not necessary in the attestation clause, but the theory is not announced that such aclause is unnecessary to the validity of the will.
For this reason such doctrine does not annul the judgment in the case of Uy Coquevs. Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among others, was laiddown that the attestation clause is necessary to the validity of the will. One of thepoints on which greatest stress was laid in that case of Uy Coque is that the requirementsof the law regarding the number of the pages used, the signing of the will and of each ofits pages by the testator in the presence of three witnesses, and the attestation andsigning of the will and of each its pages by the testator in the presence of threewitnesses, and the attestation and signing of the will and of each of its pages by thewitnesses in the presence of each other cannot be proven aliunde but by the attestationclause itself which must expressed the compliance of the will with such requirements. Butit was not held in that case of Uy Coque that the signature of the testator was necessaryin the attestation clause, nor was such point discussed there, which was the point atissue in the case of Abangan vs. Abangan, supra.
The appellees, however, argue that such clause in the case of Abangan vs. Abanganbegins at the bottom and on the same sheet in which the testamentary provisionsterminated, that is to say, the will properly speaking. Even then if it is intended tocommit misrepresentation or fraud, which are things that with the requirements of the lawfor the making and attesting of wills it is intended to avoid, it is just the same thatthe clause; as in the case of Abangan vs. Abangan, begins at the bottom of the willproperly speaking, as, like the case before us, it is wholly contained in a separatesheet. The fact is that this separate sheet, containing the attestation clause wholly orin part, is not signed in any place by the testator in the case.
Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, containsthree paragraphs, of which the first enumerates in general terms the requirements to bemet by a will executed after said Code took effect, to wit, that the language or dialectin which it is written be known by the testator, that it be signed by the latter or byanother person in the name of the testator by his express direction and in his presence,and that it be attested and signed by three or more credible witnesses in the presence ofthe testator and of each other.
These general rules are amplified in the next two paragraphs as to the specialrequirements for the execution of the will by the testator and the signing thereof by the
witnesses, with which the second paragraph of the section deals, and as to the attestationclause treated in the third and last paragraph of said section 618.
For this reason the second paragraph of this section 618 says:"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, on theleft margin, and said pages shall be numbered correlatively in letters placed on the upperpart of each sheet."
These are the solemnities that must surround the execution of the will properlyspeaking, without any reference whatsoever to the attestation clause not treated in thissecond paragraph. It is in this second paragraph which deals only with the will (withoutincluding the attestation clause), that the signature or name of the testator and those ofthe witnesses are mentioned as necessary on the left margin of each and everyone of thesheets of the will (not of the attestation clause), as well as the paging of said sheets(of the will, and not of the attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary inthe attestation clause? Let us see the last paragraph of this section 618 of the Codewhich already deals with the requirements for the attestation clause. This last paragraphreads thus:
"The attestation shall state the number of sheets or pages used, upon which the willis written, and the fact that the testator signed the will and every page thereof, orcaused some other person to write his name, under his express direction, in the presenceof three witnesses, and the latter witnessed and signed the will and all pages thereof inthe presence of the testator and of each other."
As may be seen this last paragraph refers to the contents of the text of theattestation, not the requirements or signatures thereof outside of its text. It does notrequire that the attestation be signed by the testator or that the page or sheetcontaining it be numbered.
From this analysis of our law in force it appears:First. That the will must have an attestation clause as a complement, without
which it cannot be probated and with which only and not aliunde (Uy Coque vs. Navas L.Sioca, supra) may the requirements to be stated in its text be proven. The attestationclause must be prepared and signed, as in the instant case, on the same occasion on whichthe will is prepared and signed, in such a way that the possibility of fraud, deceit orsuppression of the will or the attestation clause be reduced to a minimum; whichpossibility always exists, as experience shows, in spite of the many precautions taken bythe legislator to insure the true and free expression of one's last will.
Second. That the will is distinct and different from the attestation, althoughboth are necessary to the validity of the will, similar, in our opinion, to a documentwhich is not public so long as it is not acknowledged before a notary, the document beinga distinct and different thing from the acknowledgment, each of which must comply withdifferent requisites, among which is the signature of the maker which is necessary in thedocument but not in the acknowledgment and both things being necessary to the existence ofthe public document.
Third. That the will proper must meet the requirements enumerated in the secondparagraph of section 618 of the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance with therequirements prescribed for the will.
In the case at bar the attestation clause in question states the requirementsprescribed for the will were complied with, and this is enough for it, as such attestationclause, to be held as meeting the requirements prescribed by the law for it.
The fact that in said clause the signature of the testator does not appear does notaffect its validity, for, as above stated, the law does not require that it be signed bythe testator.
We find no merit in the assignment of error raising the question as to the validityof Act No. 2645, which is valid. For the purposes of this decision, it is not necessary toreason out this conclusion, it being sufficient for the adjudication of this case to holdthe first error assigned by the appellants to have been demonstrated.
The foregoing conclusions lead us to hold, as we do hereby hold, that the documentExhibit A, as the last will and testament of the deceased Antonino Vergel de Dios, meetsall the requirements prescribed by the law now in force and therefore it must be allowedto probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower courtproceed with the probate of the will Exhibit A in accordance with law, without expresspronouncement as to costs. So ordered.
EN BANC
G.R. No. L-2415 July 31, 1950
Testatee estate of the late Paula Toray. EUSTAQUIA TENEFRANCIA, petitioner-appellant, vs.ROSA ABAJA, oppositor-appellee.
Ditching and Ditching for petitioner-appellant.Romeo C. Castillo for oppositor-appellee.
REYES, J.:
This is an appeal from an order of the Court of First Instance of Negros Occidental denying probate of a will.
The will in question purports to have been executed in August, 1943, by Paula Toray, who died the following month. Presented for probate by one of the legatees, the herein appellant Eustaquia Tenefrancia, it was opposed by Rosa Abaja, daughter of the deceased Eulogia Abaja, instituted heir in an earlier will executed by the same testatrix and her deceased husband. The lower court disallowed the will on the ground that it was not executed in accordance with law in that the attestation clause did not state that the testatrix signed the will in the presence of the instrumental witnesses.
Among the formalities prescribed by law (section 618 of Act 190, as amended by Act No. 2645) to a valid will is the requirement that the attestation clause should state "the fact that the testator signed the will and every page thereof, or caused some other personto write his name, under his express direction, in the presence of three witnesses." This requirement was not complied with in the present case, for the attestation clause fails tostate that fact. This is obvious from the following agreed translation of the said attestation clause:
Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao todos vecinos del BarrioInayauan, Cawayan, Negros occidental, Filipinas, testigos de este testamento, Testificamos que Paula Toray, la testadora que declaro que este es su testamento o ultima voluntad y que cuando otorgo este testamento, ella estaba en su sano y cabal juicio, habiendo hecho constar el mismo, en dos pliegos de papel, firmados por nosotros en presencia de la testadora, y de nosotros tres testigos en todos los peligros de este testamento.
It is pointed out, however, that the attestation clause states that the testatrix declaredin the presence of the three witnesses that the document in question was her last will or testament, and it is argued that this testament taken together with the preceding clause which reads: "En fe de todo lo cual firmo con mi nombre este mi testamento o ultima voluntad, escrito en dialecto visayo que es el dialecto que poseo y hablo, en Inayauan, comprension de Cawayan, Filipinas, hoy a 16 de Agosto de 1943," expresses the idea that the testatrix signed the will in the presence of the witnesses. The argument is not only far-fetched but it also overlooks the fact that it is in the attestation clause signed thewill in the presence of the subscribing witnesses, since that is one of the statements by law required to be embodied in the attestation clause. The words above quoted, which, in the will in question, are written above the signature of the testator and come before the attestation clause, do not form a part of the latter. By the attestation clause is meant "that clause wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same." (Black, Law Dictionary.) It is signed not by the testator but by the witnesses, for it is a declaration made by the witnesses and not by the testator. And the law is clear that it is the attestation clause that must
contain a statement, among others, that the testator signed the will in the presence of the witnesses. Without that statement, the attestation clause is fatally defective.
This defect is not cured by proof aliunde or even by a judicial finding based upon such proof that the testator did in fact sign the will in the presence of the subscribing witnesses. That is a fact required by law to be stated in the attestation clause itself, and it is settled that where it is not so stated it cannot be established by evidence aliunde, and that where such evidence has been admitted, even without opposition, it shouldnot be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Quinto vs. Morata, 54 Phil., 481.) In the case last cited this Court had the following to say:
It is vigorously contended on behalf of the appellant, that the alleged defect of the attestation clause1 has been cured by oral evidence, which was admitted without opposition on the part of the appellee. This contention cannot be sustained. The doctrine of this court with reference to statute of frauds is not applicable to wills. The statute of frauds relates to contracts and agreements. The subject of wills and testaments and the formalities surrounding their execution are governed byseparate and specific provisions of Act No. 190.
An examination of section 618 of Act No. 190, prior to, and after its amendment by Act No. 2645, shows clearly that the legislature intended to exclude evidence aliundetending to establish that the will has been executed and attested in conformity withthe requirements of the law, where such compliance does not appear on the face of the will itself. Prior to its amendments, section 618 contained the following savingclause: "But the absence of such form of attestation shall not render the will invalid if is as proven that the will was in fact signed and attested as in this section provided."
The most outstanding feature of the amendment of said section 618 by Act No. 2645 isthe elimination of said saving clause and the greater emphasis laid on the formalities as to signatures and the attestation clause. There can be no doubt, therefore, that the intention of the legislature, in eleminating said clause, was toexclude evidence aliunde, and that where such evidence was admitted without opposition, it should not be given effect and thus defeat the manifest intention of the legislation in amending said section 618.
Section 618 of Act No. 190, as amended, should be given a strict interpretation. In the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405) this court, speaking of the construction to be given to said section, said:
Statutes prescribing the formalities to be observed in the execution of wills are very strictly construed. As stated in 40 Cyc., at page 1097, "A will must be executed in accordance with the statutory requirements; otherwise it is entirely void. All these requirements stand as of equal importance and must beobserved, and courts cannot supply the defective execution of a will. No poweror discretion is vested in them, either to superadd other conditions or dispense with those enumerated in the statutes. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407.)
It is also urged that the lower court should not have entertained the opposition of Rosa Abaja, who had no legal interest in the proceeding. But it does not appear that timely objection to the said opposition was made in the court below, and it is settled that the mere fact that a stranger has been permitted to oppose the allowance of a will is not a reversible error and does not invalidate the proceedings where no objection is interposed by any of the parties in interest. (Paras vs. Narciso, 35 Phil., 244.) It is true that in the course of Rosa Abaja's declaration, counsel for appellant made some manifestation tending to question the admissibility of her testimony. But it is not clear that the remark was meant to be an objection to the opposition itself. And in any event, even without opposition, the lower court could not have legally allowed the will in question, for under section 618 of Act No. 190, as amended by Act No. 2645, no will shall be valid to pass any estate, real or personal., nor charge or affect the same unless the attestation clause conforms to the requirements therein provided, and the imperactive
language of the Rules of Court (Rule 77, section 9 [a]) directs that the will "shall be disallowed" if not executed and "attested as required by law."
In view of the foregoing, the order appealed from is affirmed, with costs against the appellant.
EN BANC
G.R. No. L-46097 October 18, 1939
TEOFILA ADEVA VIUDA DE LEYNEZ, petitioner, vs.IGNACIO LEYNEZ, respondent.
LAUREL, J.:
This is a petition for a writ of certiorari to review the decision of the Court of Appeals affirming the decision of the Court of First Instance of Mindoro denying probate of the will of the deceased Valerio Leynez, on the ground that its attestation clause doesnot conform to the requirements section 618, as amended, of the Code of Civil Procedure.
The attestation clause of the will is worded as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente cada uno en presencia de los otros, o de los demas y de la del mismo testador Valerio Leynez . El testamento consta de los (2) paginas solamente.
The question presented is, under section 618, as amended, of the Code of Civil Procedure, is this attestation clause legally sufficient? The pertinent portion of this section of the Code is as follows:
. . . the attestation shall state the number of sheets or pages used, uponwhich 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 three witnesses, an the later witnessed and signed thewill and all pages thereof in the presence of the testator and of each other.
The alleged defect in the attestation clause of the controverted will is that itfails to state that the testator and the three witnesses signed each and every page of thewill in the manner prescribed by law, because it merely states "firmanos el presente cada uno en presencia de los otros, o de los demas y de la del mismo testador Valerio Leynez." In deciding this question the Court of Appeals, however, ruled:
A la luz de las jurisprudencias arriba citadas en la clausada de atestiguamiento discutida en el asunto de autos no encontramos un cumplimiento sustantial del requisito exigido por la ley, de que en ella se haga constar que el testador y los testigos han firmado unos en presencia de otros, todas y cada una de las paginas usadas del testamento, requisito que no se puede establecer por medio desu prueba aliunde.
Against this conclusion of the Court of Appeals, petitioner puts forward the contention that it has decided a question of substance in a way not probably in accord with the law and the applicable decisions of this court (Rule 47, paragraph e [1] of Supreme Court.) The rule of liberal construction of the applicable law should, petitioner avers, be held to apply in the case at bar, and in support of her content on she invokes along array of cases (Abangan vs .Abangan, 40 Phil., 476; Avera vs. Garcia and Rodriguez, 42Phil., 145; Aldaba vs. Roque, 43 Phil., 378; Unson vs .Abella, 43 Phil., 494; Fernandez vs. Vergel de Dios, 46 Phil., 922; Nayve vs. Mojal, 47 Phil., 152; De Gala vs .Gonzalez, 53 Phil., 104; Rey vs. Cartagena, 56 Phil., 282; Dichoso de Ticson vs. De Gorostiza, 57 Phil., 437; Sebastian vs. Paganiban, 59 Phil., 653; De Guzman vs. Celestino, G.R. No. 35273, April 25, 1932; Policarpio vs. Baltazar, G.R. No. 36349, November 14, 1932; Malate vs. Olea, G.R. No. 36154, December 16, 1932; In re Estate of Jennings, 1933, G.R. No. 38758). To this lineof cases those of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939, and Grey vs. Fabie, G.R. No. 45160, May 23, 1939, may perhaps be added. Respondent, on the other hand, equally invokes a number of cases wherein, he contends, the rule of strict construction was made to prevail. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405; In re Estate of Neuark, 46 Phil., 841; Saño vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481; Rodriguez vs. Alcala, 55 Phil., 150.)
This Court has already taken notice of these different views within, in Dichoso de Ticson vs. De Gorostiza (57 Phil., 437, 439-440), it frankly made the following observation : "The truth is that there have been, noticeable in the Philippines two divergent tendenciesin the law of wills � the one being planted on strict construction and the other on liberal construction. A late example of the former views may be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150), sanctioning a literal enforcement of the law. The
basic case in the other direction, predicated on reason, is Abangan vs. Abangan ([1919], 40 Phil., 476), oft-cited approvingly in later decisions." It is fairness to recognize the existence of opposing currents of legal thought, a situation which perhaps has brought about a certain degree of confusion in this field. It is also fairness to avow, however, that a more careful examination of the cases will show that, while the two tendencies mentioned in easily discernible, the conflict in many cases is more apparent than real, and the variance, if at all, in the application of the principles involved was due in someinstances to the marked differentiation of facts and the consequent personal or collectivecriteria in particular cases.l�wphi1.n�t
We have taken pains to examine the numerous cases relied upon by the petitioner and those relied upon by the respondent, and while we do not deem it necessary to make a detailed comparison between them, we find no difficulty in selecting what we consider is the reasonable rule to apply in this case at bar. It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of anysuggestion of bad faith, forgery or fraud, lean towards its admission to probate, althoughthe document may suffer from some imperfection of language, or other non-essential defect.This, in our opinion, is the situation in the present case, and we, therefore, hold that the requirement that the attestation clause, among other things, shall state "that the testator signed the will and every page thereof in the presence of three witnesses, and that the witnesses signed the will in the presence of the testator and of each other," is sufficiently complied with, it appearing that the testator and the witnesses signed each and every page of the will according to the stipulation of the parties. (Record on Appeal,stipulation, pp. 10, 14, 15); and this fact being shown in the will itself, and there being, furthermore, no question raised as to the authenticity of the signature of the testator and the witnesses.
An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2 ed., sec. 132.) A will, therefore, should not be rejected where its attestation clause serves the purpose of the law. The law-making body, in recognition of the dangers to which testamentary dispositions are apt to be subject in the hands of unscrupulous individuals, has surrounded the execution of the wills with every solemnity deemed necessary to safeguard it. This purpose was indicated when our legislature providedfor the exclusion of evidence aliunde to prove the execution of the will. We should not, however, attribute the prohibition as indicative of a desire to impose unreasonable restraint or beyond what reason and justice permit. It could not have been the intention of the legislature in providing for the essential safeguards in the execution of a will toshackle the very right of testamentary disposition which the law recognizes and holds sacred. The pronouncement of this Court in Abangan vs. Abangan (40 Phil., 476, 479), expresses the sound rule to which we have recently adhered in principle. (Rodriguez vs. Yap, G.R. No. 45924, promulgated May 18, 1939; and Grey vs. Fabie, G.R. No. 45160, promulgated May 23, 1939):
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But,on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.
It follows that the writ of certiorari should be, as it is hereby, granted and the judgment of the Court of Appeals reversed, with the result that the controverted will, Exhibit A, of the deceased Valerio Leynez, shall be admitted to probate. So ordered, with costs against the respondent-appellee. So ordered.
FIRST DIVISION
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.
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 thetestatrix.
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 couldintervene 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 heirswith 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 notbe acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station atPasig, 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 theappointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirsand 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 testatorand 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" butan 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 validityof the wig that the signatures of the subscribing witnesses should be specifically locatedat 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 thehonest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed atits end by the testator himself or by the testator's name written by another person in hispresence, 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 2d911).
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 permeatingthe 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 thetestator. 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 presentcase 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.
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that itis 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 whilethe 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 hasbeen held to be mandatory as an effective safeguard against the possibility ofinterpolation or omission of some of the pages of the will to the prejudice ofthe 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 theeffect 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 composedof 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 liberalapproach:
... 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 overwhose conduct she had no control where the purpose of the law to guarantee theIdentity of the testament and its component pages is sufficiently attained, nointentional 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.
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SECOND DIVISION[G.R. No. 42258. January 15, 1936.]
In re Will of the deceased Leoncia Tolentino, VICTORIO PAYAD, petitioner-appellant,vs. AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.Leodegario Azarraga for oppositor-appellant.D E C I S I O NGODDARD, J p:Both parties in this case appeal from an order of the trial court denying the
probate of the alleged will of Leoncia Tolentino, deceased. That court found that the willin question was executed by the deceased on the date appearing thereon, September 7, 1933,one day before the death of the testatrix, contrary to the contention of the oppositorthat it was executed after her death. The court, however, denied probate on the groundthat the attestation clause was not in conformity with the requirements of law in that itis not stated therein that the testatrix caused Attorney Almario to write her name at herexpress direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trialcourt in not finding that the will in question was executed after the death of LeonciaTolentino, or that she was mentally and physically incapable of executing said will oneday before her death. After a careful examination of the evidence on these points we findno reason for setting aside the conclusion of the trial court as set forth above. Theassignments of the oppositor-appellant are therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial courtdenied probate of the will on the sole ground that the attestation clause does not statethat the testatrix requested Attorney Almario to write her name. The last paragraph of thequestioned will reads in part as follows:
"En prueba de todo la cual, firmo el presente testamento con mi marca digital,porque no puedo estampar mi firma a causa de mi debilidad, rogando al abogado M. Almarioque ponga mi nombre en el sitio donde he de estampar mi marca digital . . ."
The evidence of record establishes the fact the Leoncia Tolentino, assisted byAttorney Almario, placed her thumb mark on each and every page of the questioned will andthat said attorney merely wrote her name to indicate the place where she placed said thumbmark. In other words Attorney Almario did not sign for the testatrix. She signed byplacing her thumb mark on each and every page thereof. "A statute requiring a will to be'signed' is satisfied if the signature is made by the testator's mark." (Quoted by thiscourt from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It isclear, therefore, that it was not necessary that the attestation clause in question shouldstate that the testatrix requested Attorney Almario to sign her name inasmuch as thetestatrix signed the will in question in accordance with law.
The appealed order of the trial court is reversed and the questioned will of LeonciaTolentino, deceased, is hereby admitted to probate with the costs of this appeal againstthe oppositor-appellant.
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FIRST DIVISION[G.R. No. 26135. March 3, 1927.]In re will of Eustaquio Hagoriles. PETRONILO GUMBAN, petitioner-appellee, vs.
INOCENCIA GORECHO ET AL., opponents-appellants.Powell & Hill for appellants.Padilla, Treñas & Magalona and Francisco, Lualhati & Lopez for appellee.D E C I S I O NMALCOLM, J p:This is an appeal by the widow, Inocencia Gorecho, and eighteen other opponents,
from an order of the Court of First Instance of Iloilo probating the document presented byPetronilo Gumban as the last will and testament of the deceased Eustaquio Hagoriles. Amongthe errors assigned is included the finding of the trial court that the alleged will wasprepared in conformity with the law, notwithstanding it did not contain an attestationclause stating that the testator and the witnesses signed all the pages of the will.
In support of their argument on the assignment of error above mentioned, appellantsrely on a series of cases of this court beginning with in the Matter of the Estate ofSaguinsin ( [1920], 41 Phil., 875), continuing with in In re Will of Andrada ([1921], 42Phil., 180), Uy Coque vs. Navas L. Sioca ( [1922], 43 Phil., 405), and In re Estate ofNeumark ([1923], 46 Phil., 841), and ending with in Saño vs. Quintana ([1925], 48 Phil.,50G). Appellee counters with the citation of a series of cases beginning with Abangan vs.Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayvevs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is tocontrast and if possible, conciliate, the last two decisions cited by opposing counsel,namely, those of Saño vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Saño vs. Quintana, supra, it was decided that an attestation clausewhich does not recite that the witnesses signed the will and each and every page thereofon the left margin in the presence of the testator is defective, and such a defect annulsthe will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs.Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs.Mojal and Aguilar, supra, wherein it was held that the attestation clause must state thefact that the testator and the witnesses reciprocally saw the signing of the will, forsuch an act cannot be proved by the mere exhibition of the will, if it is not statedtherein. It was also held that the fact that the testator and the witnesses signed each
and every page of the will can be proved also by the mere examination of the signaturesappearing on the document itself, and the omission to state such evident fact does notinvalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do theyadmit inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type,it would be impossible to reconcile the Mojal and Quintana decisions. They arefundamentally at variance. If we rely on one, we affirm. If we rely on the other, wereverse.
In resolving this puzzling question of authority, three outstanding points may bementioned. In the first place, the Mojal decision was concurred in by only four members ofthe court, less than a majority, with two strong dissenting opinions; the Quintanadecision was concurred in by seven members of the court, a clear majority, with one formaldissent. In the second place, the Mojal decision was promulgated in December, 1924, whilethe Quintana decision was promulgated in December 1925; the Quintana decision was thussubsequent in point of time. And in the third place, the Quintana decision is believedmore nearly to conform to the applicable provisions of the law. The right to dispose ofproperty by will is governed entirely by statute. The law of the case is here found insection 618 of the Code of Civil procedure, as amended by Act No. 2645, and in section 634of the same Code, as unamended. It is in part provided in section 618, as amended, that"No will . . . shall be valid . . . unless . . .." It is further provided in the samesection that "The attestation shall state the number of sheets or pages used, upon whichthe will is written, and the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, under his express direction, inthe presence of three witnesses, and the latter witnessed and signed the will and allpages thereof in the presence of the testator and of each other." Codal section 634provides that "The will shall be disallowed in either of the following cases: 1. If notexecuted and attested as in this Act provided." The law not alone carefully makes use ofthe imperative, but cautiously goes further and makes use of the negative, to enforcelegislative intention. It is not within the province of the courts to disregard thelegislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Saño vs. Quintana, supra, and, tothe extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar,supra.
It may not be said here that our ruling is predicated on technicality or injustice.The will in question was formulated in a medley of three languages, Visayan, English, andSpanish. Suspicious circumstances surrounded the making of the will by the bedridden oldman, who is alleged to have signed it. However, no express pronouncements on the twoimportant questions relating to the language of the will and the testamentary capacity ofthe deceased are required.
The order appealed from will be reversed, and the document Exhibit A disallowed as awill, without special pronouncement as to costs in either instance. So ordered.
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SECOND DIVISION
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPOVELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners, vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of MateoCaballero, respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any childrenand already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer,Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away beforehis petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of theTestator's will and the appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV ofthe Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appearedas oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then.8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannotovercome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labucawho clearly told the Court that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit"D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all thepages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be considered as having substantialy complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositorsclaim to be defective is "we do certify that the testament was read by him andthe attestator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the 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 that the testator signed the will "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 thetestator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated isin substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioningonce more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at theend 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 testatorand 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 should 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 thetestator and of one another.
If the attestation clause is in a language not known to the witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness. 15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the willand communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike theordinary type, requires no attestation by witnesses. A common requirement in both kinds ofwill is that they should be in writing and must have been executed in a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. 19 It is a separate memorandum 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 the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the 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 invalidity of the will, 22 should state (1) the number of the pages used upon whichthe will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; 23 whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the verysame instrument executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the lawon wills in this Project consists in the liberalization of the manner of theirexecution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions toprevent 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 with respect to the formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the Englishlanguage and is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addressesappear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscriptionis the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that 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. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses thetestator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that saidwitnesses subscribed their respective signatures to the will in the presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testatorsigning in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that theaforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provisionthereon in the Civil Code, to wit:
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 ifit is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:
. . . 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 notarized. All theses are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded.But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the language employed therein. Such defectsor imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausibleway by which we can read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses alsosigned the will and every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or reliedon by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefromwhich would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textualrequirements were actually complied within the execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumentalwitnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to
prove the same and would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. Theformal requirements were at that time embodied primarily in Section 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 practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain theseprimordial ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will, hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. Thesubsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities thatshould be observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin,
43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), andending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez 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 contrast and, if possible, conciliate the last two decisions cited by opposingcounsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clausewhich does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It wasalso held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points maybe mentioned. In the first place, the Mojal, decision was concurred in by onlyfour members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. Itis in part provided in section 61, as amended that "No will . . . shall be valid . .. unless . . .." It is further provided in the same section that "The attestation shall state the number of sheets or pages used, upon which the willis 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 three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata, 49 Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and TestateEstate of Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,
53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniableinclination towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has becomemore liberal in the interpretation of the formalities in the execution of
wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically goneback to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads:
"Art. 829. 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 thewill was in fact executed and attested in substantial compliance with all the requirements of article 829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing detailsthat should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court ishereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.
SO ORDERED.
EN BANC[G.R. No. L-5826. April 29, 1953.]Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.Clouduallo Lucero and Vicente C. Santos for appellants.Marciano Chitongco and Zosimo B. Echanova for appellee.D E C I S I O NPARAS, C.J p:This is an appeal interposed by the oppositors from a decision of the Court of First
Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro whodied in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellants is that the will is fatallydefective, because its attestation clause is not signed by the attesting witnesses. Thereis no question that the signatures of the three witnesses to the will do not appear at thebottom of the attestation clause, although the page containing the same is signed by thewitnesses on the left-hand margin. LLphil
We are of the opinion that the position taken by the appellant is correct. Theattestation clause is "a memorandum of the facts attending the execution of the will"required by law to be made by the attesting witnesses, and it must necessarily bear theirsignatures. An unsigned attestation clause cannot be considered as an act of thewitnesses, since the omission of their signatures at the bottom thereof negatives theirparticipation.
The petitioner and appellee contends that signatures of the three witnesses on theleft-hand margin conform substantially to the law and may be deemed as their signatures tothe attestation clause. This is untenable, because said signatures are in compliance withthe legal mandate that the will be signed on the left-hand margin of all its pages. If anattestation clause not signed by the three witnesses at the bottom thereof, be admitted assufficient, it would be easy to add such clause to a will on a subsequent occasion and inthe absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in questiondenied. So ordered with costs against the petitioner and appellee.
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FIRST DIVISION
G.R. No. 102784 February 28, 1996
ROSA LIM, petitioner, vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
HERMOSISIMA, JR., J.:
This is a petition to review the Decision of the Court of Appeals in CA-G.R. CR No. 10290,entitled "People v. Rosa Lim," promulgated on August 30, 1991.
On January 26, 1989, an Information for Estafa was filed against petitioner Rosa Lim before Branch 92 of the Regional Trial Court of Quezon City. 1 The Information reads:
That on or about the 8th day of October 1987, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to gain, with unfaithfulness and/or abuse of confidence, did, then and there, wilfully, unlawfully and feloniously defraud one VICTORIA SUAREZ, in the following manner, to wit: on the date and place aforementioned said accused got and received in trust from said complainant one (1) ring 3.35 solo worth P169,000.00, Philippine Currency, with the obligation to sell the same on commission basis and to turn over the proceeds of the sale to said complainantor to return said jewelry if unsold, but the said accused once in possession thereof and far from complying with her obligation despite repeated demands therefor, misapplied, misappropriated and converted the same to her own personal use and benefit, to the damage and prejudice of the said offended party in the amount aforementioned and in such other amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW. 2
After arraignment and trial on the merits, the trial court rendered judgment, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Rosa Lim GUILTY beyond reasonable doubt of the offense of estafa as defined and penalized under Article 315, paragraph 1(b) of the Revised Penal Code;
2. Sentencing her to suffer the Indeterminate penalty of FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as minimum, to TEN (10) YEARS of prision mayor as maximum;
3. Ordering her to return to the offended party Mrs. Victoria Suarez the ring or its value in the amount of P169,000 without subsidiary imprisonment in caseinsolvency; and
4. To pay costs. 3
On appeal, the Court of Appeals affirmed the judgment of conviction with the modification that the penalty imposed shall be six (6) years, eight (8) months and twenty-one (21) daysto twenty (20) years in accordance with Article 315, paragraph 1 of the Revised Penal Code. 4
Petitioner filed a motion for reconsideration before the appellate court on September 20, 1991, but the motion was denied in a Resolution dated November 11, 1991.
In her final bid to exonerate herself, petitioner filed the instant petition for review alleging the following grounds:
I
THE RESPONDENT COURT VIOLATED THE CONSTITUTION, THE RULES OF COURT AND THE DECISION OF THIS HONORABLE COURT IN NOT PASSING UPON THE FIRST AND THIRD ASSIGNED ERRORS IN PETITIONER'S BRIEF;
II
THE RESPONDENT COURT FAILED TO APPLY THE PRINCIPLE THAT THE PAROL EVIDENCE RULE WAS WAIVED WHEN THE PRIVATE PROSECUTOR CROSS-EXAMINED THE PETITIONER AND AURELIA NADERA AND WHEN COMPLAINANT WAS CROSS-EXAMINED BY THE COUNSEL FOR THE PETITIONER AS TO THE TRUE NATURE OF THE AGREEMENT BETWEEN THE PARTIES WHEREIN IT WAS DISCLOSED THAT THE TRUE AGREEMENT OF THE PARTIES WAS A SALE OF JEWELRIES AND NOT WHAT WAS EMBODIED IN THE RECEIPT MARKED AS EXHIBIT "A" WHICHWAS RELIED UPON BY THE RESPONDENT COURT IN AFFIRMING THE JUDGMENT OF CONVICTION AGAINST HEREIN PETITIONER; and
III
THE RESPONDENT COURT FAILED TO APPLY IN THIS CASE THE PRINCIPLE ENUNCIATED BY THIS HONORABLE COURT TO THE EFFECT THAT "ACCUSATION" IS NOT, ACCORDING TO THE FUNDAMENTAL LAW, SYNONYMOUS WITH GUILT: THE PROSECUTION MUST OVERTHROW THE PRESUMPTION OF INNOCENCE WITH PROOF OF GUILT BEYOND REASONABLE DOUBT. TO MEET THIS STANDARD, THERE IS NEED FOR THE MOST CAREFUL SCRUTINY OF THE TESTIMONY OFTHE STATE, BOTH ORAL AND DOCUMENTARY, INDEPENDENTLY OF WHATEVER DEFENSE IS OFFERED BY THE ACCUSED. ONLY IF THE JUDGE BELOW AND THE APPELLATE TRIBUNAL COULD ARRIVE AT A CONCLUSION THAT THE CRIME HAD BEEN COMMITTED PRECISELY BY THE PERSON ON TRIAL UNDER SUCH AN EXACTING TEST SHOULD SENTENCE THUS REQUIRED THAT EVERY INNOCENCE BE DULY TAKEN INTO ACCOUNT. THE PROOF AGAINST HIM MUST SURVIVE THE TEST OF REASON; THE STRONGEST SUSPICION MUST NOT BE PERMITTED TO SWAY JUDGMENT. (People v. Austria, 195 SCRA 700) 5
Herein the pertinent facts as alleged by the prosecution.
On or about October 8, 1987, petitioner Rosa Lim who had come from Cebu received from private respondent Victoria Suarez the following two pieces of jewelry; one (1) 3.35 caratdiamond ring worth P169,000.00 and one (1) bracelet worth P170,000.00, to be sold on commission basis. The agreement was reflected in a receipt marked as Exhibit "A" 6 for theprosecution. The transaction took place at the Sir Williams Apartelle in Timog Avenue, Quezon City, where Rosa Lim was temporarily billeted.
On December 15, 1987, petitioner returned the bracelet to Vicky Suarez, but failed to return the diamond ring or to turn over the proceeds thereof if sold. As a result, privatecomplainant, aside from making verbal demands, wrote a demand letter 7 to petitioner asking for the return of said ring or the proceeds of the sale thereof. In response, petitioner, thru counsel, wrote a letter 8 to private respondent's counsel alleging that Rosa Lim had returned both ring and bracelet to Vicky Suarez sometime in September, 1987, for which reason, petitioner had no longer any liability to Mrs. Suarez insofar as the pieces of jewelry were concerned. Irked, Vicky Suarez filed a complaint for estafa under Article 315, par l(b) of the Revised Penal Code for which the petitioner herein stands convicted.
Petitioner has a different version.
Rosa Lim admitted in court that she arrived in Manila from Cebu sometime in October 1987, together with one Aurelia Nadera, who introduced petitioner to private respondent, and that they were lodged at the Williams Apartelle in Timog, Quezon City. Petitioner denied that the transaction was for her to sell the two pieces of jewelry on commission basis. She told Mrs. Suarez that she would consider buying the pieces of jewelry far her own use and that she would inform the private complainant of such decision before she goes back toCebu. Thereafter, the petitioner took the pieces of jewelry and told Mrs. Suarez to prepare the "necessary paper for me to sign because I was not yet prepare (d) to buy it."
9 After the document was prepared, petitioner signed it. To prove that she did not agree to the terms of the receipt regarding the sale on commission basis, petitioner insists that she signed the aforesaid document on the upper portion thereof and not at the bottom where a space is provided for the signature of the person(s) receiving the jewelry. 10
On October 12, 1987 before departing for Cebu, petitioner called up Mrs. Suarez by telephone in order to inform her that she was no longer interested in the ring and bracelet. Mrs. Suarez replied that she was busy at the time and so, she instructed the petitioner to give the pieces of jewelry to Aurelia Nadera who would in turn give them back to the private complainant. The petitioner did as she was told and gave the two pieces of jewelry to Nadera as evidenced by a handwritten receipt, dated October 12, 1987.11
Two issues need to be resolved: First, what was the real transaction between Rosa Lim and Vicky Suarez � a contract of agency to sell on commission basis as set out in the receiptor a sale on credit; and, second, was the subject diamond ring returned to Mrs. Suarez through Aurelia Nadera?
Petitioner maintains that she cannot be liable for estafa since she never received the jewelries in trust or on commission basis from Vicky Suarez. The real agreement between her and the private respondent was a sale on credit with Mrs. Suarez as the owner-seller and petitioner as the buyer, as indicated by the bet that petitioner did not sign on the blank space provided for the signature of the person receiving the jewelry but at the upper portion thereof immediately below the description of the items taken. 12
The contention is far from meritorious.
The receipt marked as Exhibit "A" which establishes a contract of agency to sell on commission basis between Vicky Suarez and Rosa Lim is herein reproduced in order to come to a proper perspective:
THIS IS TO CERTIFY, that I received from Vicky Suarez PINATUTUNAYAN KO na aking tinanggap kay ___________ the following jewelries:
ang mga alahas na sumusunod:
Description PriceMga Uri Halaga
l ring 3.35 dolo P 169,000.001 bracelet 170,000.00total Kabuuan P 339,000.00
in good condition, to be sold in CASH ONLY within . . . days from date of signing this receipt na nasa mabuting kalagayan upang ipagbili ng KALIWAAN (ALCONTADO) lamang sa loob ng . . . araw mula ng ating pagkalagdaan:
if I could not sell, I shall return all the jewelry within the period mentioned above; if I would be able to sell, I shall immediately deliver and account the whole proceeds of sale thereofto the owner of the jewelries at his/her residence; my compensation or commission shall be the over-price on the value ofeach jewelry quoted above. I am prohibited to sell any jewelry on credit or by installment; deposit, give for safekeeping: lend, pledge or give as security or guaranty under any circumstance or manner, any jewelry to other person or persons.
kung hindi ko maipagbili ay isasauli ko ang lahat ng alahas sa loob ng taning na panahong nakatala sa itaas; kung maipagbili ko naman ay dagli kong isusulit at ibibigay ang buong pinagbilhan sa may-ari ng mga alahas sa kanyang bahay tahanan; ang aking gantimpala ay ang mapapahigit na halaga sa nakatakdang halaga sa itaas ng bawat alahas HINDI ko ipinahihintulutang ipa-u-u-tang o ibibigay na hulugan ang alin mang alahas, ilalagak, ipagkakatiwala; ipahihiram; isasangla o ipananagot kahit sa anong paraan ang alin mang alahas sa ibang mga tao o tao.
I sign my name this . . . day of . . . 19 . . . at Manila, NILALAGDAAN ko ang kasunduang ito ngayong ika _____ ng dito sa Maynila.
___________________Signature of Persons whoreceived jewelries (Lagdang Tumanggap ng mgaAlahas)
Address: . . . . . . . . . . ..
Rosa Lim's signature indeed appears on the upper portion of the receipt immediately below the description of the items taken: We find that this fact does not have the effect of altering the terms of the transaction from a contract of agency to sell on commission basis to a contract of sale. Neither does it indicate absence or vitiation of consent thereto on the part of Rosa Lim which would make the contract void or voidable. The momentshe affixed her signature thereon, petitioner became bound by all the terms stipulated in the receipt. She, thus, opened herself to all the legal obligations that may arise from their breach. This is clear from Article 1356 of the New Civil Code which provides:
Contracts shall be obligatory in whatever form they may have been entered into, provided all the essential requisites for their validity are present. . . .
However, there are some provisions of the law which require certain formalities for particular contracts. The first is when the form is required for the validity of thecontract; the second is when it is required to make the contract effective as against third parties such as those mentioned in Articles 1357 and 1358; and the third is when the form is required for the purpose of proving the existence of the contract, such as those provided in the Statute of Frauds in article 1403. 13 A contract of agency to sell on commission basis does not belong to any of these threecategories, hence it is valid and enforceable in whatever form it may be entered into.
Furthermore, there is only one type of legal instrument where the law strictly prescribes the location of the signature of the parties thereto. This is in the case of notarial wills found in Article 805 of the Civil Code, to wit:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself . . . .
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. . . .
In the case before us, the parties did not execute a notarial will but a simple contract of agency to sell on commission basis, thus making the position of petitioner's signature thereto immaterial.
Petitioner insists, however, that the diamond ring had been returned to Vicky Suarez through Aurelia Nadera, thus relieving her of any liability. Rosa Lim testified to this effect on direct examination by her counsel:
Q: And when she left the jewelries with you, what did you do thereafter?
A: On October 12, I was bound for Cebu. So I called up Vicky through telephone and informed her that I am no longer interested in the bracelet and ring and that I will just return it.
Q: And what was the reply of Vicky Suarez?
A: She told me that she could not come to the apartelle since she was very busy. So, she asked me if Aurelia was there and when I informed her that Aurelia was there, she instructed me to give thepieces of jewelry to Aurelia who in turn will give it back to Vicky.
Q: And you gave the two (2) pieces of jewelry to Aurelia Nadera?
A: Yes, Your Honor. 14
This was supported by Aurelia Nadera in her direct examination by petitioner's counsel:
Q: Do you know if Rosa Lim in fact returned the jewelries?
A: She gave the jewelries to me.
Q: Why did Rosa Lim give the jewelries to you?
A: Rosa Lim called up Vicky Suarez the following morning and told Vicky Suarez that she was going home to Cebu and asked if she could give the jewelries to me.
Q: And when did Rosa Lim give to you the jewelries?
A: Before she left for Cebu. 15
On rebuttal, these testimonies were belied by Vicky Suarez herself:
Q: It has been testified to here also by both Aurelia Nadera and Rosa Lim that you gave authorization to Rosa Lim to turn over the two (2) pieces of jewelries mentioned in Exhibit "A" to Aurelia Nadera, what can you say about that?
A: That is not true sir, because at that time Aurelia Nadera is highly indebted to me in the amount of P140,000.00, so if I gave it to Nadera, I will be exposing myself to a high risk. 16
The issue as to the return of the ring boils down to one of credibility. Weight of evidence is not determined mathematically by the numerical superiority of the witnesses testifying to a given fact. It depends upon its practical effect in inducing belief on thepart of the judge trying the case. 17 In the case at bench, both the trial court and the Court of Appeals gave weight to the testimony of Vicky Suarez that she did not authorize Rosa Lim to return the pieces of jewelry to Nadera. The respondent court, in affirming thetrial court, said:
. . . This claim (that the ring had been returned to Suarez thru Nadera) is disconcerting. It contravenes the very terms of Exhibit A. The instruction by the complaining witness to appellant to deliver the ring to Aurelia Nadera is vehemently denied by the complaining witness, who declared that she did not authorize and/or instruct appellant to do so. And thus, by delivering the ringto Aurelia without the express authority and consent of the complaining witness, appellant assumed the right to dispose of the jewelry as if it were hers, thereby committing conversion, a clear breach of trust, punishable underArticle 315, par. 1(b), Revised Penal Code.
We shall not disturb this finding of the respondent court. It is well settled that we should not interfere with the judgment of the trial court in determining the credibility of witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted. The reason is that the trial court is in a better position to determine questions involving credibility having heard the witnesses and having observed their deportment and manner of testifying during the trial. 18
Article 315, par. 1(b) of the Revised Penal Code provides:
Art. 315. Swindling (estafa). � Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
xxx xxx xxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving theduty to make delivery of or to return the same, even though such obligation betotally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
xxx xxx xxx
The elements of estafa with abuse of confidence under this subdivision are as follows. (1)That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (2) That there be misappropriation or conversionof such money or property by the offender or denial on his part of such receipt; (3) That such misappropriation or conversion or denial is to the prejudice of another; and (4) Thatthere is a demand made by the offended party to the offender (Note: The 4th element is notnecessary when there is evidence of misappropriation of the goods by the defendant) 19
All the elements of estafa under Article 315, Paragraph 1(b) of the Revised Penal Code, are present in the case at bench. First, the receipt marked as Exhibit "A" proves that petitioner Rosa Lim received the pieces of jewelry in trust from Vicky Suarez to be sold on commission basis. Second, petitioner misappropriated or converted the jewelry to her own use; and, third, such misappropriation obviously caused damage and prejudice to the private respondent.
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals is hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
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FIRST DIVISION
G.R. No. 131953 June 5, 2002
MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners, vs.THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA, ESTRELLA M. CAÑETE, LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C. NATIVIDAD namely, OSCARC. NATIVIDAD, OLGA NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD, RICHARD NATIVIDAD, RAYMUND NATIVIDAD, RICHIE NATIVIDAD, SONIA NATIVIDAD and ENCARNACION CABATINGAN VDA. DE TRINIDAD, ALFREDO CABATINGAN and JESUSA C. NAVADA, respondents.
AUSTRIA-MARTINEZ, J.:
Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is the sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa.
The facts of the case are as follows:
On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a "Deed of Conditional of Donation (sic) Inter Vivos for House and Lot"covering one-half (�) portion of the former's house and lot located at Cot-cot, Liloan, Cebu.1 Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land - one located in Cogon, Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a portion of the Masbate property (80,000 sq. m.).2 These deeds of donation contain similar provisions, to wit:
"That for and in consideration of the love and affection of the DONOR for the DONEE,x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; x x x"3 (Emphasis Ours)
On May 9, 1995, Conchita Cabatingan died.
Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue, Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as Civil Case No. MAN-2599, seekingthe annulment of said four (4) deeds of donation executed on January 14, 1995. Respondentsallege, inter alia, that petitioners, through their sinister machinations and strategies and taking advantage of Conchita Cabatingan's fragile condition, caused the execution of the deeds of donation, and, that the documents are void for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa.4 Respondents prayed that a receiver be appointed in order to preserve the disputed properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas Cabatingan.5
Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita Cabatingan freely, knowingly and voluntarily caused the preparation of the instruments.6
On respondents' motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of respondents, with the following dispositive portion:
"WHEREREFORE, and in consideration of all the foregoing, judgment is hereby renderedin favor of the plaintiffs and against the defendant and unwilling co-plaintiff withregards (sic) to the four Deeds of Donation Annexes "A", "A-1", "B" and Annex "C" which is the subject of this partial decision by:
Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa and forfailure to comply with formal and solemn requisite under Art. 806 of the New Civil Code;
b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the deceased Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this partial decision,as mandated under Art. 777 of the New Civil Code;
SO ORDERED."7
The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed on January 14, 1995 are null and void for failure to complywith the requisites of Article 806 of the Civil Code on solemnities of wills and testaments.8
Raising questions of law, petitioners elevated the court a quo's decision to this Court,9 alleging that:
"THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED RULINGS OF THIS HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF DONATIONS AS INTER VIVOS OR MORTIS CAUSA AND, INSTEAD, PROCEEDED TO INTERPRET THE DONATIONS IN QUESTION IN A MANNER CONTRARY THERETO."10
Petitioners insist that the donations are inter vivos donations as these were made by the late Conchita Cabatingan "in consideration of the love and affection of the donor" for thedonee, and there is nothing in the deeds which indicate that the donations were made in consideration of Cabatingan's death.11 In addition, petitioners contend that the stipulation on rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.
Petitioners' arguments are bereft of merit.
In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive."12 In determining whether a donation is one of mortis causa, the following characteristics must be taken into account:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain theownership (full or naked) and control of the property while alive;
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;
and
(3) That the transfer should be void if the transferor should survive the transferee.13
In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death.14 The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of donation, to wit:
"That the DONEE does hereby accept the foregoing donation mortis causa under the terms and conditions set forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity of the DONOR."
x x x
"SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which consists of two (2) pages x x x."15
That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations as inter vivos because transfers mortis causa may also be made for the same reason.16
Well in point is National Treasurer of the Phils. v. Vda. de Meimban.17 In said case, the questioned donation contained the provision:
"That for and in consideration of the love and affection which the DONOR has for theDONEE, the said Donor by these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ONE HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the above described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan Subdivision of Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become effective upon the death of the DONOR. (italics supplied.)"18
Notably, the foregoing provision is similar to that contained in the donation executed by Cabatingan. We held in Meimban case that the donation is a mortis causa donation, and that the above quoted provision establishes the donor's intention to transfer the ownership andpossession of the donated property to the donee only after the former's death. Further:
"As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been complied with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no effect. As we have held in Alejandro v. Geraldez (78 SCRA 245,253), "If the donation is made in contemplation of the donor's death, meaning that the full or naked ownership of the donated properties will pass to the donee because of the donor's death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament. (Citing Bonsato v. Court of Appeals, 95 Phil. 481)."19
We apply the above rulings to the present case. The herein subject deeds expressly providethat the donation shall be rescinded in case petitioners predecease Conchita Cabatingan. As stated in Reyes v. Mosqueda,20 one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated be transferred to the donee or independently of, and not by reason of her death, she would have not expressed such proviso in the subject deeds.1�wphi1.n�t
Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary provisions21 and as such, said deeds must be executed in accordancewith the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code, to wit:
"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 bythree 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 thewill 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 andthe 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)"
The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not executed in the manner provided for under the above-quoted provisions of law.
Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.
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THIRD DIVISION
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner, vs.COURT OF APPEALS, GERALDA AIDA CASTILLO substituted 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. In refusing to give legal recognition to the due execution of this document, the Court is provided theopportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
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 three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills � that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questionsas to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero
43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali�t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa�t dahon, sa harap ng lahat at bawa�t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa�t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa�t dahon ng kasulatan ito.
EUGENIA E. IGSOLO address: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.
QUIRINO AGRAVA address: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO address: Avenue 2, Blcok 7,Lot 61, San Gabriel, G.MA., Cavite Res.Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA address: City Court Compound,City of Manila Res. Cert. No. A574829Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKOPage No. 86 ; Until Dec. 31, 1981Book No. 43 ; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor againstpetitioner, particularly for forcible entry and usurpation of real property, all centeringon petitioner�s right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, itwas subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent�s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor�s arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretationof the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title,"Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ngHunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa�t dahon, sa harap ng lahat at bawa�t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa�t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa�t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law.
On the oppositor�s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing bythe subscribing witnesses on the left margin of the second page of the will containing theattestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.
With regard to the oppositor�s argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages.The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor�s assertion that the signature of the testatrix on the will is aforgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals 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.10
Hence, the present petition.
Petitioner 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."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereofby 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 lettersplaced 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 instrumentalwitnesses, 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.
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.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the
absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages.If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that theattestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the 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 Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state thenumber of pages used in the will, however, the same was found in the last part of the bodyof the Will:
"x x x
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 sheetsupon which the will 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. Gorcho, 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 thewill 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." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the:
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will 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 whilethe 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" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in anypart of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, consideringthat the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "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."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "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. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictionsto prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary 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 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 notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of theattestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another�s presence should beconsidered a fatal flaw since the attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring theclause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increaseor decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation inSingson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator�s incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. 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 which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestationclause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted assufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 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 [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. 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. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses� undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses� signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number ofpages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition shouldalso hinge. The requirement under Article 806 that "every will must be acknowledged beforea notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated fromthe other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko atninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplationcan those words be construed as an acknowledgment. An acknowledgment is the act of one whohas executed a deed in going before some competent officer or court and declaring it to behis act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that thesame is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifiesthat before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or
"notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44
of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
EN BANC[G.R. No. L-20357. November 25, 1967.]IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN,
deceased. PEDRO REYES GARCIA, petitioner-appellant, vs. FELIPE GATCHALIAN, AURORA G.CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G. TALANAY,oppositors-appellees.
E. Debuque for petitioner-appellant.E. L. Segovia for oppositors-appellees.D E C I S I O NDIZON, J p:This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of
First Instance of Rizal in Special Proceedings No. 2623 denying the allowance of the will
of the late Gregorio Gatchalian, on the ground that the attesting witnesses did notacknowledge it before a notary public as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in themunicipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the sameyear, appellant filed a petition with the above-named court for the probate of saidalleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian,Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles C.Talanay, appellees herein, opposed the petition on the ground, among others, that the willwas procured by fraud; that the deceased did not intend the instrument signed by him to beas his will; and that the deceased was physically and mentally incapable of making a willat the time of the alleged execution of said will.
After due trial, the court rendered the appealed decision finding the documentExhibit "C" to be the authentic last will of the deceased but disallowing it for failureto comply with the mandatory requirement of Article 806 of the New Civil Code — that thewill must be acknowledged before a notary public by the testator and the witnesses.
An examination of the document (Exhibit "C") shows that the same was acknowledgedbefore a notary public by the testator but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:"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 fileanother with the office of the Clerk of Court."
We have held heretofore that compliance with the requirement contained in the abovelegal provision to the effect that a will must be acknowledged before a notary public bythe testator and also by the witnesses is indispensable for its validity (In re: TestateEstate of Alberto, G.R. No. L-11948, April 29, 1959). As the document under considerationdoes not comply with this requirement, it is obvious that the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with costs.
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FIRST DIVISION[G.R. No. L-7179. June 30, 1955.]Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-
appellee, vs. DOÑA MATEA LEDESMA, oppositor-appellant.Fulgencio Vega and Felix D. Bacabac for appellant.Benjamin H. Tirot for appellee.D E C I S I O NREYES, J.B.L., J p:By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate
the documents in the Visayan dialect, marked Exhibits D and E, as the testament andcodicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabianaand Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearestsurviving relative of said deceased, appealed from the decision, insisting that the saidexhibits were not executed in conformity with law. The appeal was made directly to thisCourt because the value of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lackedtestamentary capacity and that the dispositions were procured through undue influence.These grounds were abandoned at the hearing in the court below, where the issue wasconcentrated into three specific questions: (1) whether the testament of 1950 was executedby the testatrix in the presence of the instrumental witnesses; (2) whether theacknowledgment clause was signed and the notarial seal affixed by the notary without thepresence of the testatrix and the witnesses; and (3) if so, whether the codicil wasthereby rendered invalid and ineffective. These questions are the same ones presented tous for resolution.
The contestant argues that the Court below erred in refusing credence to herwitnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceasedApolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap(one of the witnesses to the will) inform the deceased that he had brought the"testamento" and urge her to go to attorney Tabiana's office to sign it; that Da.Apolinaria manifested that she could not go, because she was not feeling well; and thatupon Yap's insistence that the will had to be signed in the attorney's office and notelsewhere, the deceased took the paper and signed it in the presence of Yap alone, andreturned it with the statement that no one would question it because the property involvedwas exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing thetrial Court's rejection of the improbable story of these witnesses. It is squarelycontradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty.Ramon C. Tabiana, and his wife Gloria Montinola, who asserted under oath that thetestament was executed by testatrix and witnesses in the presence of each other, at thehouse of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it ishighly unlikely, and contrary to usage, that either Tabiana or Yap should have insistedthat Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house inorder to execute her will, when all three witnesses could have easily repaired thither for
the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony ofContestant's witnesses. Both claim to have heard the word "testamento" for the first timewhen Yap used it; and yet they claimed ability to recall that word four years later,despite the fact that the term meant nothing to either. It is well known that what is tobe remembered must first be rationally conceived and assimilated (II Moore on Facts, p.884). Likewise, Maria Paderogao was positive that Yap brought the will, and that thedeceased alone signed it, precisely on March 30, 1950; but she could remember no otherdate, nor give satisfactory explanation why that particular day stuck in her mind. Worsestill, Allado claimed to have heard what allegedly transpired between Yap and Da.Apolinaria from the kitchen of the house, that was later proved to have been separatedfrom the deceased's quarters, and standing at a much lower level, so that conversations inthe main building could not be distinctly heard from the kitchen. Later, on redirectexamination, Allado sought to cure his testimony by claiming that he was upstairs in aroom where the servants used to eat when he heard Yap converse with his mistress; but thiscorrection is unavailing, since it was plainly induced by two highly leading questionsfrom contestant's counsel that had been previously ruled out by the trial Court. Besides,the contradiction is hardly consonant with this witness' 18 years of service to thedeceased.
Upon the other hand, the discrepancies in the testimony of the instrumentalwitnesses urged upon us by the contestant-appellant, concerning the presence or absence ofAurelio Montinola at the signing of the testament or of the codicil, and the identity ofthe person who inserted the date therein, are not material and are largely imaginary,since the witness Mrs. Tabiana confessed inability to remember all the details of thetransaction. Neither are we impressed by the argument that the use of some Spanish termsin the codicil and testament (like legado, partes iguales, plena propieda) is proof thatits contents were not understood by the testatrix, it appearing in evidence that thoseterms are of common use even in the vernacular, and that the deceased was a woman of widebusiness interests.
The most important variation noted by the contestants concerns that signing of thecertificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E.Unlike the testament, this codicil was executed after the enactment of the new Civil Code,and, therefore, had to be acknowledged before a notary public (Art. 806). Now, theinstrumental witnesses (who happen to be the same ones who attested the will of 1950)asserted that after the codicil had been signed by the testratrix and the witnesses at SanPablo Hospital, the same was signed and sealed by notary public Gimotea on the sameoccasion. On the other hand, Gimotea affirmed that he did not do so, but brought thecodicil to his office, and signed and sealed it there. The variance does not necessarilyimply conscious perversion of truth on the part of the witnesses, but appears rather dueto a well- established phenomenon, the tendency of the mind, in recalling past events, tosubstitute the usual and habitual for what differs slightly from it (II Moore on Facts, p.878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed thecertification of acknowledgment in the presence of the testatrix and the witnesses, doesnot affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new CivilCode does not require that the signing of the testator, witnesses and notary should beaccomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Codereveals that while testator and witnesses must sign in the presence of each other, allthat is thereafter required is that "every will must be acknowledged before a notarypublic by the testator and the witnesses" (Art. 806); i.e., that the latter should avow tothe certifying officer the authenticity of their signatures and the voluntariness of theiractions in executing the testamentary disposition. This was done in the case before us.The subsequent signing and sealing by the notary of his certification that the testamentwas duly acknowledged by the participants therein is no part of the acknowledgment itselfnor of the testamentary act. Hence their separate execution out of the presence of thetestatrix and her witnesses can not be said to violate the rule that testaments should becompleted without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Romanmaxim puts it, "uno eodem die ac tempore in eadem loco", and no reversible error wascommitted by the Court in so holding. It is noteworthy that Article 806 of the new CivilCode does not contain words requiring that the testator and the witnesses shouldacknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs againstappellant.
FIRST DIVISION[G.R. No. L-32213. November 26, 1973.]AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge
of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.Paul G. Gorrez for petitioner.Mario D. Ortiz for respondent Manuel B. Lugay.D E C I S I O NESGUERRA, J p:Petition to review on certiorari the judgment of the Court of First Instance of Cebu
allowing the probate of the last will and testament of the late Valente Z. Cruz.Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased, opposedthe allowance of the will (Exhibit "E"), alleging that the will was executed throughfraud, deceit, misrepresentation and undue influence; that the said instrument wasexecuted without the testator having been fully informed of the contents thereof,particularly as to what properties he was disposing; and that the supposed last will andtestament was not executed in accordance with law. Notwithstanding her objection, theCourt allowed the probate of the said last will and testament. Hence this appeal bycertiorari which was given due course.
The only question presented for determination, on which the decision of the casehinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E")was executed in accordance with law, particularly Articles 805 and 806 of the new CivilCode, the first requiring at least three credible witnesses to attest and subscribe to thewill, and the second requiring the testator and the witnesses to acknowledge the willbefore a notary public. cdrep
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr.Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at thesame time the Notary Public before whom the will was supposed to have been acknowledged.Reduced to simpler terms, the question was attested and subscribed by at least threecredible witnesses in the presence of the testator and of each other, considering that thethree attesting witnesses must appear before the notary public to acknowledge the same. Asthe third witness is the notary public himself, petitioner argues that the result is thatonly two witnesses appeared before the notary public to acknowledge the will. On the otherhand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of thewill, following the reasoning of the trial court, maintains that there is substantialcompliance with the legal requirement of having at least three attesting witnesses even ifthe notary public acted as one of them, bolstering up his stand with 57 AmericanJurisprudence, p. 227 which, insofar as pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against thepurely technical reason that one of the witnesses required by law signed as certifying toan acknowledgment of the testator's signature under oath rather than as attesting theexecution of the instrument."
After weighing the merits of the conflicting claims of the parties, We are inclinedto sustain that of the appellant that the last will and testament in question was notexecuted in accordance with law. The notary public before whom the will was acknowledgedcannot be considered as the third instrumental witness since he cannot acknowledge beforehimself his having signed the will. To acknowledge before means to avow (Javellana v.Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as genuine, toassent, to admit; and "before" means in front or preceding in space or ahead of. (The NewWebster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls NewStandard Dictionary of the English Language, p. 252; Webster's New InternationalDictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself,he would have to avow, assent, or admit his having signed the will in front of himself.This cannot be done because he cannot split his personality into two so that one willappear before the other to acknowledge his participation in the making of the will. Topermit such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against anyillegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That function would be
defeated if the notary public were one of the attesting or instrumental witnesses. Forthem he would be interested in sustaining the validity of the will as it directly involveshimself and the validity of his own act. It would place him in an inconsistent positionand the very purpose of the acknowledgment, which is to minimize fraud (Report of the CodeCommission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, inaddition, act as a witness to the execution of the document he has notarized. (Mahilum v.Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130) There are othersholding that his signing merely as a notary in a will nonetheless makes him a witnessthereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d.641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee'sEstate 160 N. W. 900; Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So.1030). But these authorities do not serve the purpose of the law in this jurisdiction orare not decisive of the issue herein, because the notaries public and witnesses referredto in the aforecited cases merely acted as instrumental, subscribing or attestingwitnesses, and not as acknowledging witnesses. Here the notary public acted not only asattesting witness but also as acknowledging witness, a situation not envisaged by Article805 of the Civil Code which reads:
"ART. 806. Every will must be acknowledged before a notary public by the testatorand the witnesses. The notary public shall not be required to retain a copy of the will orfile another with the office of the Clerk of Court." [Emphasis supplied]
To allow the notary public to act as third witness, or one of the attesting andacknowledging witnesses, would have the effect of having only two attesting witnesses tothe will which would be in contravention of the provisions of Article 805 requiring atleast three credible witnesses to act as such and of Article 806 which requires that thetestator and the required number of witnesses must appear before the notary public toacknowledge the will. The result would be, as has been said, that only two witnessesappeared before the notary public for that purpose. In the circumstances, the law wouldnot be duly observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probateof the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid andhereby set aside.
Cost against the appellee.
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FIRST DIVISION[G.R. No. L-37453. May 25, 1979.]RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.Francisco D. Rilloraza, Jr. for petitioners.Angel A. Sison for private respondent.D E C I S I O NGUERRERO, J p:This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA-G. R. No. 36523-R which reversed the decisionof the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate ofthe last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago fileda petition with the Court of First Instance of Rizal docketed as Special Proceedings No.3617, for the probate of a will alleged to have been executed by the deceased IsabelGabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as awidow and without issue in the municipality of Navotas, province of Rizal her place ofresidence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It islikewise not controverted that herein private respondent Lutgarda Santiago and petitionerRizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, withher husband and children, lived with the deceased at the latter's residence prior and upto the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog,appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2)months prior to the death of Isabel Gabriel. It consists of five (5) pages, including thepages whereon the attestation clause and the acknowledgment of the notary public werewritten. The signatures of the deceased Isabel Gabriel appear at the end of the will onpage four and at the left margin of all the pages. The attestation clause, which is foundon page four, reads as follows:
"PATUNAY NG MGA SAKSI"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuona ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito nabinubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO ATHULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na siIsabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat nadahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat atbawat dahon (and on the left hand margin of each and every page), sa harap ng lahat atbawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, atsa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwangpanig ng lahat at bawa't dahon ng testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures ofMatilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under theheading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife,for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signaturesalso appear on the left margin of all the other pages. The will is paged by typewrittenwords as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" andunderneath "(Page Two)", etc., appearing at the top of each page. prLL
The will itself provides that the testatrix desired to be buried in the CatholicCemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, allexpenses to be paid from her estate; that all her obligations, if any, be paid; thatlegacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago,her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina(herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina,Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The hereinprivate respondent Lutgarda Santiago, who was described in the will by the testatrix as"aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isangtunay na anak" and named as universal heir and executor, were bequeathed all propertiesand estate, real or personal, already acquired, or to be acquired, in her (testatrix's)name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailingthe document purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative2. that the same was not executed and attested as required by law;3. that, at the time of the alleged execution of the purported will, the decedent
lacked testamentary capacity due to old age and sickness; and in the second alternative4. that the purported will was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for herbenefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. Aftertrial the court a quo rendered judgment, the summary and dispositive portions of whichread:
"Passing in summary upon the grounds advanced by the oppositor, this Court finds:
"1. That there is no iota of evidence to support the contention that the purportedwill of the deceased was procured through undue and improper pressure and influence on thepart of the petitioner, or of some other person for her benefit;
"2. That there is insufficient evidence to sustain the contention that at the timeof the alleged execution of the purported will, the deceased lacked testamentary capacitydue to old age and sickness;
"3. That sufficient and abundant evidence warrants conclusively the fact that thepurported will of the deceased was not executed and attested as required by law;
"4. That the evidence is likewise conclusive that the document presented forprobate, Exhibit 'F' is not the purported will allegedly dictated by the deceased,executed and signed by her, and attested by her three attesting witnesses on April 15,1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will andtestament of the deceased Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court,hence, the only issue decided on appeal was whether or not the will in question wasexecuted and attested as required by law. The Court of Appeals, upon consideration of theevidence adduced by both parties, rendered the decision now under review, holing that thewill in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and MariaGimpaya, signing and witnessing the document in the presence of the deceased and of eachother as required by law, 2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaiddecision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago.Thereafter, parties submitted their respective Memoranda, 5 and on August 28, 1973,respondent Court, Former Special First Division, by Resolution 6 denied the motion forreconsideration stating that:
"The oppositor-appellee contends that the preponderance of evidence shows that thesupposed last will and testament of Isabel Gabriel was not executed in accordance with lawbecause the same was signed on several occasions, that the testatrix did not sign the willin the presence of all the instrumental witnesses did not sign the will in the presence ofeach other.
"The resolution of the factual issue raised in the motion for reconsideration hingeson the appreciation of the evidence. We have carefully re-examined the oral anddocumentary evidence of record. There is no reason to alter the findings of fact in thedecision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends thatrespondent Court abused its discretion and/or acted without or in excess of itsjurisdiction in reversing the findings of fact and conclusions of the trial court. TheCourt, after deliberating on the petition but without giving due course resolved, in theResolution dated Oct. 11, 1973 to require the respondents to comment thereon, whichcomment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issuesraised and the arguments adduced in the petition, as well as the Comment 8 of privaterespondent thereon, We denied the petition by Resolution on November 26, 1973, 9 thequestion raised being factual and for insufficient showing that the findings of fact byrespondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed aMotion for Reconsideration 10 which private respondent answered by way of her Comment orOpposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally,on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:I. The respondent Court of Appeals erred in holding that the document, Exhibit
"F" was executed and attested as required by law when there was absolutely no proof thatthe three instrumental witnesses were credible witnesses.
II. The Court of Appeals erred in reversing the finding of the lower court thatthe preparation and execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previouslyfurnished with the names and residence certificates of the witnesses as to enable him totype such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewrittenlines under the typewritten words "Pangalan" and "Tinitirahan" were left blank showsbeyond cavil that the three attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it wasincredible that Isabel Gabriel could have dictated the will, Exhibit "F", without any noteor document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court thatMatilde Orubia was not physically present when the will, Exhibit "F" was allegedly signedon April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya andMaria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undueimportance to the picture takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions,and misrepresentations of witnesses (subscribing and notary) presented by the petitionerhad been explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has sofar departed from the accepted and usual course of judicial proceedings, as to call for anexercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court andadmitting to probate Exhibit "F", the alleged last will and testament of the deceasedIsabel Gabriel.
It will be noted from the above assignments of errors that the same aresubstantially factual in character and content. Hence, at the very outset, We must againstate the oft-repeated and well-established rule that in this jurisdiction, the factualfindings of the Court of Appeals are not reviewable, the same being binding and conclusiveon this Court. This rule has been stated and reiterated in a long line of cases enumeratedin Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202,February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista vs. Carilloand CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs ofCatalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA,this Court said: LibLex
". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the thenJustice Recto, it has been well-settled that the jurisdiction of this Court in casesbrought to us from the Court of Appeals is limited to reviewing and revising the errors oflaw imputed to it, its findings of fact being conclusive. More specifically, in a decisionexactly a month later, this Court, speaking through the then Justice Laurel it was heldthat the same principle is applicable, even if the Court of Appeals was in disagreementwith the lower court as to the weight of the evidence with a consequent reversal of itsfindings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported bysubstantive evidence are not reviewable on appeal by certiorari. Said findings of theappellate court are final and cannot be disturbed by Us particularly because its premisesare borne out by the record or based upon substantial evidence and what is more, when suchfindings are correct. Assignments of errors involving factual issues cannot be ventilatedin a review of the decision of the Court of Appeals because only legal questions may beraised. The Supreme Court is not at liberty to alter or modify the facts as set forth inthe decision of the Court of Appeals sought to be reversed. Where the findings of theCourt of Appeals are contrary to that of the trial court, a minute scrutiny by the SupremeCourt is in order, and resort to duly-proven evidence becomes necessary. The general ruleWe have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed toconsider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appealserred in holding that the document, Exhibit "F", was executed and attested as required bylaw when there was absolutely no proof that the three instrumental witnesses were crediblewitnesses. She argues that the requirement in Article 806, Civil Code, that the witnessesmust be credible is an absolute requirement which must be complied with before an allegedlast will and testament may be admitted to probate and that to be a credible witness,there must be evidence on record that the witness has a good standing in his community, orthat he is honest and upright, or reputed to be trustworthy and reliable. According topetitioner, unless the qualifications of the witness are first established, his testimonymay not be favorably considered. Petitioner contends that the term "credible" is notsynonymous with "competent" for a witness may be competent under Article 820 and 821 ofthe Civil Code and still not be credible as required by Article 805 of the same Code. Itis further urged that the term "credible" as used in the Civil Code should receive thesame settled and well-known meaning it has under the Naturalization Law, the latter being
a kindred legislation with the Civil Code provisions on wills with respect to thequalifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the CivilCode provides the qualifications of a witness to the execution of wills while Article 821sets forth the disqualification from being a witness to a will. These Articles state:
"Art. 820. Any person of sound mind and of the age of eighteen years or more, andnot blind, deaf or dumb, and able to read and write, may be a witness to the execution ofa will mentioned in article 805 of this Code.
"Art. 821. The following are disqualified from being witnesses to a will:(1) Any person not domiciled in the Philippines,(2) Those who have been convicted of falsification of a document, perjury or false
testimony.Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his reputationfor trustworthiness and reliableness, his honesty and uprightness in order that histestimony may be believed and accepted by the trial court. It is enough that thequalifications enumerated in Article 820 of the Civil Code are complied with, such thatthe soundness of his mind can be shown by or deduced from his answers to the questionspropounded to him, that his age (18 years or more) is shown from his appearance,testimony, or competently proved otherwise, as well as the fact that he is not blind, deafor dumb and that he is able to read and write to the satisfaction of the Court, and thathe has none of the disqualifications under Article 821 of the Civil Code. We rejectpetitioner's contention that it must first be established in the record the good standingof the witness in the community, his reputation for trustworthiness and reliableness, hishonesty and uprightness, because such attributes are presumed of the witness unless thecontrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" asused in the Civil Code should be given the same meaning it has under the NaturalizationLaw where the law is mandatory that the petition for naturalization must be supported bytwo character witnesses who must prove their good standing in the community, reputationfor trustworthiness and reliableness, their honesty and uprightness. The two witnesses ina petition for naturalization are character witnesses in that being citizens of thePhilippines, they personally know the petitioner to be a resident of the Philippines forthe period of time required by the Act and a person of good repute and morallyirreproachable and that said petitioner has in their opinion all the qualificationsnecessary to become a citizen of the Philippines and is not in any way disqualified underthe provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses forthey merely attest the execution of a will or testament and affirm the formalitiesattendant to said execution. And We agree with the respondent that the rulings laid downin the cases cited by petitioner concerning character witnesses in naturalizationproceedings are not applicable to instrumental witnesses to wills executed under the CivilCode of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumentalwitnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent andcredible is satisfactorily supported by the evidence as found by the respondent Court ofAppeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover,petitioner has not pointed to any disqualification of any of the said witnesses, much lesshas it been shown that anyone of them is below 18 years of age, of unsound mind, deaf ordumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than aholographic will, must be subscribed at the end thereof by the testator himself or by thetestator's name written by some other person in his presence, and by his expressdirection, and attested and subscribed by three or more credible witnesses in the presenceof the testator and of one another. While the petitioner submits that Article 820 and 821of the New Civil Code speak of the competency of a witness due to his qualifications underthe first Article and none of the disqualifications under the second Article, whereasArticle 805 requires the attestation of three or more credible witnesses, petitionerconcludes that the term credible requires something more than just being competent and,therefore, a witness in addition to being competent under Articles 820 and 821 must alsobe a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witnessare not synonymous terms and one may be a competent witness and yet not a credible one.
She exacerbates that there is no evidence on record to show that the instrumentalwitnesses are credible in themselves, that is, that they are of good standing in thecommunity since one was a family driver by profession and the second the wife of thedriver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix andhis wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacherto a grandchild of the testatrix. But the relation of employer and employee much less thehumble social or financial position of a person do not disqualify him to be a competenttestamentary witness. (Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344;Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more crediblewitnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 ofthe same Code, this being obvious from that portion of Article 820 which says "may be awitness to the execution of a will mentioned in Article 805 of this Code," and citesauthorities that the word "credible" insofar as witnesses to a will are concerned simplymeans "competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Courtheld that "Granting that a will was duly executed and that it was in existence at the timeof, and not revoked before, the death of the testator, still the provisions of the lostwill must be clearly and distinctly proved by at least two credible witnesses. 'Crediblewitnesses' mean competent witnesses and not those who testify to facts from or uponhearsay." (emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the SupremeCourt held that "Section 620 of the same Code of Civil Procedure provides that any personof sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb andable to read and write, may be a witness to the execution of a will. This same provisionis reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer andemployee, or being a relative to the beneficiary in a will, does not disqualify one to bea witness to a will. The main qualification of a witness in the attestation of wills, ifother qualifications as to age, mental capacity and literacy are present, is that saidwitness must be credible, that is to say, his testimony may be entitled to credence. Thereis a long line of authorities on this point, a few of which we may cite:
"A 'credible witness' is one who is not disqualified to testify by mentalincapacity, crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A.619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competentwitness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).
"Expression 'credible witness' in relation to attestation of wills means 'competentwitness'; that is, one competent under the law to testify to fact of execution of will.Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60S. W. 2nd 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall beattested by two credible witnesses means competent; witnesses who, at the time ofattesting the will, are legally competent to testify, in a court of justice, to the factsattested by subscribing the will, the competency being determined as of the date of theexecution of the will and not of the time it is offered for probate. Smith vs. Goodell,101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competentwitnesses — that is, such persons as are not legally disqualified from testifying incourts of justice, by reason of mental incapacity, interest, or the commission of crimes,or other cause excluding them from testifying generally, or rendering them incompetent inrespect of the particular subject matter or in the particular suit. Hill vs. Chicago Title& Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to awill is determined by the statute, that is Art. 820 and 821, Civil Code, whereas hiscredibility depends on the appreciation of his testimony and arises from the belief andconclusion of the Court that said witness is telling the truth. Thus, in the case of Vda.de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, theSupreme Court held and ruled that: "Competency as a witness is one thing, and it isanother to be a credible witness, so credible that the Court must accept what he says.Trial courts may allow a person to testify as a witness upon a given matter because he iscompetent, but may thereafter decide whether to believe or not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competentmust be shown to have the qualifications under Article 820 of the Civil Code and none ofthe disqualifications under Article 821 and for their testimony to be credible, that is
worthy of belief and entitled to credence, it is not mandatory that evidence be firstestablished on record that the witnesses have a good standing in the community or thatthey are honest and upright or reputed to be trustworthy and reliable, for a person ispresumed to be such unless the contrary is established otherwise. In other words, theinstrumental witnesses must be competent and their testimonies must be credible before thecourt allows the probate of the will they have attested. We, therefore, rejectpetitioner's position that it was fatal for respondent not to have introduced prior andindependent proof of the fact that the witnesses were "credible witnesses", that is, thatthey have a good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments oferrors, petitioner disputes the findings of fact of the respondent court in finding thatthe preparation and execution of the will was expected and not coincidental, in findingthat Atty. Paraiso was not previously furnished with the names and residence certificatesof the witnesses as to enable him to type such data into the document Exhibit "F", inholding that the fact that the three typewritten lines under the typewritten words"pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attestingwitnesses were all present in the same occasion, in holding credible that Isabel Gabrielcould have dictated the will without note or document to Atty. Paraiso, in holding thatMatilde Orobia was physically present when the will was signed on April 15, 1961 by thedeceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, inholding that the trial court gave undue importance to the picture takings as proof thatthe will was improperly executed, and in holding that the grave contradictions, evasionsand misrepresentations of the witnesses (subscribing and notary) presented by thepetitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid downthat the findings of fact of the appellate court are binding and controlling which Wecannot review, subject to certain exceptions which We will consider and discusshereinafter. We are convinced that the appellate court's findings are sufficientlyjustified and supported by the evidence on record. Thus, the alleged unnaturalnesscharacterizing the trip of the testatrix to the office of Atty. Paraiso and bringing allthe witnesses without previous appointment for the preparation and execution of the willand that it was coincidental that Atty. Paraiso was available at the moment impugns thefinding of the Court of Appeals that although Atty. Paraiso admitted the visit of IsabelGabriel and of her companions to his office on April 15, 1961 was unexpected as there wasno prior appointment with him, but he explained that he was available for any businesstransaction on that day and that Isabel Gabriel had earlier requested him to help herprepare her will. The finding of the appellate court is amply based on the testimony ofCelso Gimpaya that he was not only informed on the morning of the day that he witnessedthe will but that it was the third time when Isabel Gabriel told him that he was going towitness the making of her will, as well as the testimony of Maria Gimpaya that she wascalled by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearbyand from said house, they left in a car to the lawyer's office, which testimonies arerecited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and hiswife Maria Gimpaya obtained residence certificates a few days before Exhibit "F" wasexecuted. Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizalon April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issuedalso at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed thatthere was nothing surprising in these facts and that the securing of these residencecertificates two days and one day, respectively, before the execution of the will on April15, 1961, far from showing an amazing coincidence, reveals that the spouses were earliernotified that they would be witnesses to the execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to theoffice of Atty. Paraiso was planned by the deceased, which conclusion was correctly drawnfrom the testimony of the Gimpaya spouses that they started from the Navotas residence ofthe deceased with a photographer and Isabel Gabriel herself, then they proceeded by car toMatilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all thethree witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayedfor about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded toAtty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previousto the day that the will was executed on April 15, 1961, Isabel Gabriel had requested himto help her in the execution of her will and that he told her that if she really wanted to
execute her will, she should bring with her at least the Mayor of Navotas, Rizal and aCouncilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificatefrom a physician notwithstanding the fact that he believed her to be of sound anddisposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia,Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty.Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabrielherself."
As to the appellate court's finding that Atty. Paraiso was not previously furnishedwith the names and residence certificates of the witnesses as to enable him to type suchdata into the document Exhibit "F", which the petitioner assails as contradictory andirreconcilable with the statement of the Court that Atty. Paraiso was handed a list(containing the names of the witnesses and their respective residence certificates)immediately upon their arrival in the law office by Isabel Gabriel and this wascorroborated by Atty. Paraiso himself who testified that it was only on said occasion thathe received such list from Isabel Gabriel, We cannot agree with petitioner's contention.We find no contradiction for the respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no suchlist was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residencecertificates of the witnesses on a prior occasion or on the very occasion and date inApril 15, 1961 when the will was executed, is of no moment for such data appear in thenotarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by thewitnesses on April 15, 1961 following the attestation clause duly executed and signed onthe same occasion, April 15, 1961. And since Exhibit "F" is a notarial will dulyacknowledged by the testatrix and the witnesses before a notary public, the same is apublic document executed and attested through the intervention of the notary public and assuch public document is evidence of the facts in clear, unequivocal manner thereinexpressed. It has in its favor the presumption of regularity. To contradict all these,there must be evidence that is clear, convincing and more than merely preponderant.(Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in thecase at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that thethree typewritten lines under the typewritten words "pangalan" and "tinitirahan" were leftblank shows beyond cavil that the three attesting witnesses were all present in the sameoccasion merits Our approval because this conclusion is supported and borne out by theevidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath thetypewritten words "names", "Res. Tax Cert.", "date issued" and "place issued" the onlyname of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on February 24,1961 at Navotas, Rizal appears to be in typewritten form while the names, residence taxcertificate numbers, dates and places of issuance of said certificates pertaining to thethree (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincideswith Atty. Paraiso's even the sale must be made to close relatives; and the seventh wasthe appointment of the appellant Santiago as executrix of the will without bond. Thetechnical description of the properties in paragraph 5 of Exhibit F was not given and thenumbers of the certificates of title were only supplied by Atty. Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of theproperties disposed and the docket number of a special proceeding are indicated whichAtty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends thatit was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without anynote or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sicklywoman more than eighty-one years old and had been suffering from a brain injury caused bytwo severe blows at her head and died of terminal cancer a few weeks after the executionof Exhibit "F". While we can rule that this is a finding of fact which is within thecompetency of the respondent appellate court in determining the testamentary capacity ofthe testatrix and is, therefore, beyond Our power to revise and review, We neverthelesshold that the conclusion reached by the Court of Appeals that the testatrix dictated herwill without any note or memorandum appears to be fully supported by the following factsor evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularlyactive in her business affairs as she actively managed the affairs of the movie businessIsabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before herdeath. She was the widow of the late Eligio Naval, former Governor of Rizal Province andacted as co-administratrix in the Intestate Estate of her deceased husband Eligio Naval.
The text of the will was in Tagalog, a dialect known and understood by her and in thelight of all the circumstances, We agree with the respondent Court that the testatrixdictated her will without any note or memorandum, a fact unanimously testified to by thethree attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, bothtestimonial and documentary is, according to the respondent court, overwhelming thatMatilde Orobia was physically present when the will was signed on April 15, 1961 by thetestatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factualfinding of the appellate court is very clear, thus: "On the contrary, the record isreplete with proof that Matilde Orobia was physically present when the will was signed byIsabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and MariaGimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessonsto the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happenedto be a Saturday for which reason Orobia could not have been present to witness the willon that day — is purely conjectural. Witness Orobia did not admit having given pianolessons to the appellant's child every Wednesday and Saturday without fail. It is highlyprobable that even if April 15, 1961 were a Saturday, she gave no piano lessons on thatday for which reason she could have witnessed the execution of the will. Orobia spoke ofoccasions when she missed giving piano lessons and had to make up for the same. Anyway,her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 andthere was nothing to preclude her from giving piano lessons on the afternoon of the sameday in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya thatMatilde was present on April 15, 1961 and that she signed the attestation clause to thewill and on the left-hand margin of each of the pages of the will, the documentaryevidence which is the will itself, the attestation clause and the notarial acknowledgmentoverwhelmingly and convincingly prove such fact that Matilde Orobia was present on thatday of April 15, 1961 and that she witnessed the will by signing her name thereon andacknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestationclause which Matilde Orobia signed is the best evidence as to the date of signing becauseit preserves in permanent form a recital of all the material facts attending the executionof the will. This is the very purpose of the attestation clause which is made for thepurpose of preserving in permanent form, a record of the facts attending the execution ofthe will, so that in case of failure in the memory of the subscribing witnesses, or othercasualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs.Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals inholding that the trial court gave undue importance to the picture-takings as proof thatthe will was improperly executed, We agree with the reasoning of the respondent courtthat: "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary towhat the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that thephotographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse oftime. The law does not require a photographer for the execution and attestation of thewill. The fact that Miss Orobia mistakenly identified the photographer as Cesar Mendozascarcely detracts from her testimony that she was present when the will was signed becausewhat matters here is not the photographer but the photograph taken which clearly portraysMatilde Orobia herself, her co-witnesses Celso Gimpaya." Further, the respondent Courtcorrectly held: "The trial court gave undue importance to the picture-takings, jumpingtherefrom to the conclusion that the will was improperly executed. The evidence however,heavily points to only one occasion of the execution of the will on April 15, 1961 whichwas witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses werequite emphatic and positive when they spoke of this occasion. Hence, their identificationof some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraisowas superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of Celso Gimpaya. But this was explained byAtty. Paraiso as a reenactment of the first incident upon the insistence of IsabelGabriel. Such reenactment where Matilde Orobia was admittedly no longer present was whollyunnecessary if not pointless. What was important was that the will was duly executed andwitnessed on the first occasion on April 15, 1961," and We agree with the Court'srationalization in conformity with logic, law and jurisprudence which do not requirepicture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentationsof witnesses in their respective testimonies before the trial court. On the other hand,the respondent Court of Appeals held that said contradictions, evasions andmisrepresentations had been explained away. Such discrepancies as in the description ofthe typewriter used by Atty. Paraiso which he described as "elite" which to him meant bigletters which are of the type in which the will was typewritten but which was identifiedby witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the name of thephotographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra,Jr. — these are indeed unimportant details which could have been affected by the lapse oftime and the treachery of human memory such that by themselves would not alter theprobative value of their testimonies on the true execution of the will, (Pascual vs. delaCruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person willbe identical and coinciding with each other with regard to details of an incident and thatwitnesses are not expected to remember all details. Human experience teach us "thatcontradictions of witnesses generally occur in the details of certain incidents, after along series of questionings, and far from being an evidence of falsehood constitute ademonstration of good faith. Inasmuch as not all those who witness an incident areimpressed in like manner, it is but natural that in relating their impressions, theyshould not agree in the minor details; hence the contradiction in their testimony." (Lopezvs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should nothave been disturbed by the respondent appellate court because the trial court was in abetter position to weigh and evaluate the evidence presented in the course of the trial.As a general rule, petitioner is correct but it is subject to well-established exceptions.The right of the Court of Appeals to review, alter and reverse the findings of the trialcourt where the appellate court, in reviewing the evidence has found that facts andcircumstances of weight and influence have been ignored and overlooked and thesignificance of which have been misinterpreted by the trial court, cannot be disputed.Findings of facts made by trial courts particularly when they are based on conflictingevidence whose evaluation hinges on questions of credibility of contending witnesses liespeculiarly within the province of trial courts and generally, the appellate court shouldnot interfere with the same. In the instant case, however, the Court of Appeals found thatthe trial court had overlooked and misinterpreted the facts and circumstances establishedin the record. Whereas the appellate court said that "Nothing in the record supports thetrial court's unbelief that Isabel Gabriel dictated her will without any note or documentto Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not havewitnessed anybody signing the alleged will or that she could not have witnessed CelsoGimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signingit, is a conclusion based not on facts but on inferences; that the trial court gave undueimportance to the picture-takings, jumping therefrom to the conclusion that the will wasimproperly executed and that there is nothing in the entire record to support theconclusion of the court a quo that the will-signing occasion was a mere coincidence andthat Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing ofher will, then it becomes the duty of the appellate court to reverse findings of fact ofthe trial court in the exercise of its appellate jurisdiction over the lower courts. LLpr
Still the petitioner insists that the case at bar is an exception to the rule thatthe judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewedby the Supreme Court. Again We agree with the petitioner that among the exceptions are:(1) when the conclusion is a finding grounded entirely on speculations, surmises orconjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) whenthere is a grave abuse of discretion; (4) when the presence of each other as required bylaw. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographerproceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building,Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medicalcertificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at thelatter's office and told the lawyer that she wanted her will to be made; that Atty.Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and theattorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to andspoken by her; that Atty. Paraiso read back to her what he wrote as dictated and sheaffirmed their correctness; the lawyer then typed the will and after finishing thedocument, he read it to her and she told him that it was alright; that thereafter, IsabelGabriel signed her name at the end of the will in the presence of the three witnesses
Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of eachand every page of the document in the presence also of the said three witnesses; thatthereafter Matilde Orobia attested the will by signing her name at the end of theattestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document inthe presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and MariaGimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clauseand at the left-hand margin of the other pages of the document in the presence of IsabelGabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing hername at the foot of the attestation clause and at the left-hand margin of every page inthe presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty.Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his NotarialRegister. On the occasion of the execution and attestation of the will, a photographertook pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel,Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing ofthe will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he hadearlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor ofNavotas, Rizal to be her witnesses for he did not know beforehand the identities of thethree attesting witnesses until the latter showed up at his law office with Isabel Gabrielon April 15, 1961. Atty. Paraiso's claim-which was not controverted that he wrote down inhis own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubtthat he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was crediblethat Isabel Gabriel could have dictated the will, Exhibit "F", without any note ordocument to Atty. Paraiso as against the contention of petitioner that it was incredible.This ruling of the respondent court is fully supported by the evidence on record as statedin the decision under review, thus: "Nothing in the record supports the trial court'sunbelief that Isabel Gabriel dictated her will without any note or document to Atty.Paraiso. On the contrary, all the three attesting witnesses uniformly testified thatIsabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paperthat she handed to said lawyer she had no note or document. This fact jibes with theevidence — which the trial court itself believed was unshaken — that Isabel Gabriel was ofsound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quitesimple. The first was Isabel Gabriel's wish to be interred according to Catholic rites;the second was a general directive to pay her debts if any; the third provided forP1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brotherSantiago Gabriel; the fourth was a listing of her 13 nephews and nieces includingoppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth was theinstitution of the petitioner-appellant, Lutgarda Santiago as the principal heirmentioning in general terms seven (7) types of properties; the sixth disposed of theremainder of her estate which she willed in favor of appellant Lutgarda Santiago butprohibiting the sale of such properties to anyone except in extreme situations in whichjudgment is based on a misapprehension of facts; (5) when the findings of fact areconflicting; (6) when the Court of Appeals, in making its findings, went beyond the issuesof the case and the same is contrary to the admissions of both appellant and appellee.(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola BottlingCo., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570;Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fallwithin any of the exceptions enumerated above. We likewise hold that the findings of factof the respondent appellate court are fully supported by the evidence on record. Theconclusions are fully sustained by substantial evidence. We find no abuse of discretionand We discern no misapprehension of facts. The respondent Court's findings of fact arenot conflicting. Hence, the well-established rule that the decision of the Court ofAppeals and its findings of fact are binding and conclusive and should not be disturbed bythis Tribunal and it must be applied in the case at bar in its full force and effect,without qualification or reservation. The above holding simply synthesizes the resolutionswe have heretofore made in respect to petitioner's previous assignments of error and towhich We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as Wefind the respondent Court acted properly and correctly and has not departed from theaccepted and usual course of judicial proceedings as to call for the exercise of the powerof supervision by the Supreme Court, and as We find that the Court of Appeals did not err
in reversing the decision of the trial court and admitting to probate Exhibit "F", thelast will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation andevaluation of the evidence on record is unassailable that: "From the welter of evidencepresented, we are convinced that the will in question was executed on April 15, 1961 inthe presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing thesame in the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sittingaround the table. Atty. Paraiso, after finishing the notarial act, then delivered theoriginal to Isabel Gabriel and retained the other copies for his file and notarialregister. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya andanother photographer arrived at the office of Atty. Paraiso and told the lawyer that shewanted another picture taken because the first picture did not turn out good. The lawyertold her that this cannot be done because the will was already signed but Isabel Gabrielinsisted that a picture be taken, so a simulated signing was performed during whichincident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimoniesof the witnesses for the proponent of the will, their alleged evasions, inconsistenciesand contradictions. But in the case at bar, the three instrumental witnesses whoconstitute the best evidence of the will-making have testified in favor of the probate ofthe will. So has the lawyer who prepared it, one learned in the law and long in thepractice thereof, who thereafter notarized it. All of them are disinterested witnesses whostand to receive no benefit from the testament. The signatures of the witnesses and thetestatrix have been identified on the will and there is no claim whatsoever and by anyone,much less the petitioner, that they were not genuine. In the last and final analysis, theherein conflict is factual and we go back to the rule that the Supreme Court cannot reviewand revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,with costs against the petitioner.
SO ORDERED.
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SECOND DIVISION
[G.R. No. L-51546. January 28, 1980.]JOSE ANTONIO GABUCAN, petitioner-appellant, vs. HON. JUDGE LUIS D. MANTA, JOSEFA G.
VDA. DE YSALINA and NELDA G. ENCLONAR, respondents-appellees.Ignacio A. Calingin for appellant.D E C I S I O NAQUINO, J p:This case is about the dismissal of a petition for the probate of a notarial will on
the ground that it does not bear a thirty-centavo documentary stamp.The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in
Special Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan,dismissed the proceeding (erroneously characterizes as an "action").
The proceeding was dismissed because the requisite documentary stamp was not affixedto the notarial acknowledgment in the will and, hence, according to respondent Judge, itwas not admissible in evidence, citing section 238 of the Tax Code, now section 250 of the1977 Tax Code, which reads:
"SEC. 238. Effect of failure to stamp taxable document. — An instrument, document,or paper which is required by law to be stamped and which has been signed, issued,accepted, or transferred without being duly stamped, shall not be recorded, nor shall itor any copy thereof or any record of transfer of the same be admitted or use in evidencein any court until the requisite stamp or stamps shall have been affixed thereto andcancelled.
No notary public or other officer authorized to administer oaths shall add his jurator acknowledgment to any document subject to documentary stamp tax unless the properdocumentary stamps are affixed thereto and cancelled."
The probate court assumed that the notarial acknowledgment of the said will issubject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax Code,now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of petitioner'smanifestation that he had already attached the documentary stamp to the original of thewill, (See Mahilum vs. Court of Appeals, 64 3. G. 4017, 17 SCRA 482, 486.)
The case was brought to this Court by means of a petition for mandamus to compel thelower court to allow petitioner's appeal from its decision. In this Court's resolution ofJanuary 21, 1980 the petition for mandamus was treated in the interest of substantial andspeedy justice as an appeal under Republic Act No. 5440 as well as a special civil actionof certiorari under Rule 65 of the Rules of Court.
We hold that the lower court manifestly erred in declaring that, because nodocumentary stamp was affixed to the will, there was "no will and testament to probate"and, consequently, the alleged "action must of necessity be dismissed."
What the probate court should have done was to require the petitioner or proponentto affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment ofthe will which is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which does not bear the requisite documentary stamp,subsists only "until the requisite stamp or stamps shall have been affixed thereto andcancelled."
Thus, it was held that the documentary stamp may be affixed at the time the taxabledocument is presented in evidence (Del Castillo vs. Madrileña, 49 Phil. 749) If thepromissory note does not bear a documentary stamp, the court should have allowedplaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil.67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of thedocumentary stamp on a document does not invalidate such document. See Cia. General deTabacos vs. Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and Figueroa vs. Amenabar, 16Phil. 403, 405-6.)
WHEREFORE, the lower court's dismissal of the petition for probate is reversed andset aside. It is directed to decide the case on the merits in the light of the parties'evidence. No costs.
SO ORDERED.
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FIRST DIVISION
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner, vs.HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admittingto probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will,the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature ofthe testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within themeaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly notcomplied with, probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:
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.
Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used
in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the dayof his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of theterm "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision,there can be no other course for us but to conclude that Brigido Alvarado comes within thescope of the term "blind" as it is used in Art. 808. Unless the contents were read to him,he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On thecontrary, with respect to the "Huling Habilin," the day of the execution was not the firsttime that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnessesand the testator's physician) asked the testator whether the contents of the document wereof his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were inaccordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Orderand its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws onthe subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it isnot the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft ofhis will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appealsdated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner.
SO ORDERED.
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EN BANC[G.R. NO. L-26615. APRIL 30, 1970.]REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND
DR. JAIME ROSARIO, petitioners, vs. HON. CONRADO M. VASQUEZ, as Judge of the Court ofFirst Instance of Manila, Branch V and CONSUELO GONZALES VDA. DE PRECILLA, respondents.
[G.R. No. L-26884. April 30, 1970.]REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND
DR. JAIME ROSARIO, petitioners, vs. HON. CONRADO M. VASQUEZ, as Judge of the Court ofFirst Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES
VDA. DE PRECILLA, respondents.[G.R. No. L-27200. April 30, 1970.]TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE
PRECILLA, petitioner administratrix, vs. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO,VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO,EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS,DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-
MANAHAN, oppositors-appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon
C. Aquino for petitioner administratrix.Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, et
al.Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus
de Praga.Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina
Narciso, et al.George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants
Natividad del Rosario Sarmiento, et al.
D E C I S I O NREYES, J.B.L., J p:G.R. No. L-27200 is an appeal from the order of the Court of First Instance of
Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will an, testamentof the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain alleged heirs of said decedentseeking (1) to compel the probate court to remove Consuelo S. Gonzales-Precilla as specialadministratrix of the estate, for conflict of interest, to appoint a new one in her stead;and (2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCTNos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married toConsuelo Gonzales y Narciso, and said to be properly belonging to the estate of thedeceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may bestated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September1965, leaving no descendents, ascendants, brother or sister. At the time of her death, shewas said to be 90 years old more or less, and possessed of an estate consisting mostly ofreal properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of thedeceased, petitioned the Court of First Instance of Manila for probate of the alleged lastwill and testament of Gliceria A. del Rosario, executed on 29 December 1960, and for herappointment as special administratrix of the latter's estate, said to be valued at aboutP100,000.00, pending the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr.Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956 and1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased andlegatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed
Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso deManahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin, surnamedMauricio, — the latter five groups of persons all claiming to be relatives of DoñaGliceria within the fifth civil degree. The oppositions invariably charged that theinstrument executed in 1960 was not intended by the deceased to be her true will; that thesignatures of the deceased appearing in the will was procured through undue and improperpressure and influence the part of the beneficiaries and/or other persons; that thetestatrix did not know the object of her bounty; that the instrument itself revealsirregularities in its execution, and that the formalities required by law for suchexecution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of thedeceased, joined the group of Dr. Jaime Rosario in registering opposition to theappointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix,on the ground that the latter possesses interest adverse to the estate. After the partieswere duly heard, the probate court, in its order of 2 October 1965, granted petitioner'sprayer and appointed her special administratrix of the estate upon a bond for P30,000.00.The order was premised on the fact the petitioner was managing the properties belonging tothe estate even during the lifetime of the deceased, and to appoint another person asadministrator or co administrator at that stage of the proceeding would only result infurther confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate courtan urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals madeagainst the funds of the deceased after 2 September 1965. The court denied this motion on22 October 1965 for being premature, it being unaware that such deposit in the name of thedeceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children,Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the courtfor the immediate removal of the special administratrix. It was their claim that thespecial administratrix and her deceased husband, Alfonso Precilla, 2 had caused GliceriaA. del Rosario to execute a simulated and fraudulent deed of absolute sale dated 10January 1961 allegedly conveying unto said spouses for the paltry sum of P30,000.00ownership of 3 parcels of land and the improvements thereon located on Quiapo and SanNicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended thatsince it is the duty of the administrator to protect and conserve the properties of theestate, and it may become necessary that, an action for the annulment of the deed of saleland for recovery of the aforementioned parcels of land be filed against the specialadministratrix, as wife and heir of Alfonso Precilla, the removal of the saidadministratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing theSpecial Administratrix to deposit with the Clerk of Court all certificates of titlebelonging to the estate. It was alleged that on 22 October 1965, or after her appointment,petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrixof the estate of the deceased Gliceria A. del Rosario, filed with Branch IV of the Courtof First Instance of Manila a motion for the issuance of new copies of the owner'sduplicates of certain certificates of title in the name of Gliceria del Rosario,supposedly needed by her "in the preparation of the inventory" of the propertiesconstituting the estate. The motion having been granted, new copies of the owner'sduplicates of certificates appearing the name of Gliceria del Rosario (among which wereTCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965,according to the oppositors, the same special administratrix presented to the Register ofDeeds the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of AlfonsoPrecilla, and, in consequence, said certificates of title were cancelled and newcertificates (Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla,married to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will ofGliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, theprobate court took note that no evidence had been presented to establish that thetestatrix was not of sound mind when the will was executed; that the fact that she hadprepared an earlier will did not, prevent her from executing another one thereafter; thatthe fact that the 1956 will consisted of 12 pages whereas the 1960 testament was containedin one page does not render the latter invalid; that, the erasures and alterations in theinstrument were insignificant to warrant rejection; that the inconsistencies in the
testimonies of the instrumental witnesses which were noted by the oppositors are evenindicative of their truthfulness. The probate court, also considering that petitioner hadalready shown capacity to administer the properties of the estate and that from theprovisions of the will she stands as the person most concerned and interested therein,appointed said petitioner regular administratrix with a bond for P50,000.00. From thisorder all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors' motion of 14December 1965 for the removal of the then special administratrix, as follows:
"It would seem that the main purpose of the motion to remove the specialadministratrix and to appoint another one in her stead, is in order that an action may befiled against the special administratrix for the annulment of the deed of sale executed bythe decedent on January 10, 1961. Under existing documents, the properties sold pursuantto the said deed of absolute sale no longer forms part of the estate. The alleged conflictof interest is accordingly not between different claimants of the same estate. If it isdesired by the movants that an action be filed by them to annul the aforesaid deedabsolute sale, it is not necessary that the special administratrix be removed and thatanother one be appointed to file such action. Such a course of action would only produceconfusion and difficulties in the settlement of the estate. The movants may file theaforesaid proceedings, preferably in an independent action, to secure the nullity of thedeed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of thetitles in the name of the decedent, the same was also denied, for the reason that if themovants were referring to the old titles, they could no longer be produced, and if theymeant the new duplicate copies thereof that were issued at the instance of the specialadministratrix, there would be no necessity therefor, because they were already cancelledand other certificates were issued in the name of Alfonso Precilla. This orderprecipitated the oppositors' filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs. Hon. Judge Conrado M. Vasquez, et al.), whichwas given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, theoppositors requested the Register of Deeds of Manila to annotate a notice of lis pendensin the records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. Andwhen said official refused to do so, they applied to the probate court (in Sp. Proc. No.62618) for an order to compel the Register of Deeds to annotate a lis pendens notice inthe aforementioned titles contending that the matter of removal and appointment of theadministratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the SupremeCourt. Upon denial of this motion on 12 November 1966, oppositors filed another mandamusaction, this time against the probate court and the Register of Deeds. The case wasdocketed and given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of theorder allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix,Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956consisting of 12 pages and written in Spanish, a language that she knew and spoke,witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, andacknowledged before notary public Jose Ayala; and another dated 29 December 1960,consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales,Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M.Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnessesDecena, Lopez and Rosales uniformly declared that they were individually requested byAlfonso Precilla (the late husband of petitioner special administratrix) to witness theexecution of the last will of Doña Gliceria A. del Rosario; that they arrived at the houseof the old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29December 1960; that the testatrix at the time was apparently of clear and sound mind,although she was being aided by Precilla when she walked; 3 that the will, which wasalready prepared, was first read "silently" by the testatrix herself before she signed it;4 that he three witnesses thereafter signed the will in the presence of the testatrix andthe notary public and of one another. There is also testimony that after the testatrix andthe witnesses to the will acknowledged the instrument to be their voluntary act and deed,the notary public asked for their respective residence certificates which were handed tohim by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers
already written on the will, the notary public filled in the blanks in the instrument withthe date, 29 January 1960, before he affixed his signature and seal thereto. 6 They alsotestified that on that occasion no pressure or influence has been exerted by any personupon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signingof this 1960 will are evident from the records. The will appeared to have been prepared byone who is not conversant with the spelling of Tagalog words, and it has been shown thatAlfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses tothe will, two of whom are fellow Visayans, 8 admitted their relationship or closeness toPrecilla. 9 It was Precilla who instructed them to go to the house of Gliceria del Rosarioon 29 December 1960 to witness an important document, 10 and who took their residencecertificates from them a few days before the will was signed. 11 Precilla had met thenotary public and witnesses Rosales and Lopez at the door of the residence of the oldwoman; he ushered them to the room at the second floor where the signing of the documenttook place; 12 then he fetched witness Decena from the latter's haberdashery shop a fewdoors away and brought him to, the house the testatrix. 13 And when the will was actuallyexecuted Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the correctnessof the probate court's ruling, maintain that on 29 December 1960 the eyesight of Gliceriadel Rosario was so poor and defective that she could not have read the provisions of thewill, contrary to the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis verymaterial and illuminating. Said ophthalmologist, whose expertise was admitted by bothparties, testified, among other things, that when Doña Gliceria del Rosario saw him forconsultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15and that it was "above normal in pressure", denoting a possible glaucoma, a disease thatleads to blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:
"Q But is there anything here in the entry appearing in the other documentsExhibits 3-B, 3-C and 3-D from which you could inform the court as to the condition of thevision of the patient as to the right eve ?
"A Under date of August 30, 1960, is the record of refraction. that is setting ofglass by myself which showed that the right eye with my prescription of glasses had avision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).
"Q In layman's language, Doctor, what is the significance of that notation thatthe right had a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at aminimum distance of twenty feet.
"Q But would that grade enable the patient to read print?"A Apparently that is only a record for distance vision, for distance sight, not
for near."(pages 20-21, t.s.n., hearing of 23 March 1966)The records also show that although Dr. Tamesis operated of the left eye of the
decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of theglasses her vision was only "counting fingers," 17 at five feet. The cross-examination ofthe doctor further elicited the following responses:
"Q After she was discharged from the hospital you prescribed lenses for her, orglasses?
"A After her discharge from the hospital, she was coming to my clinic for furtherexamination and then sometime later glasses were prescribed.
xxx xxx xxx"Q And the glasses prescribed by you enabled her to read, Doctor?"A As far as my record is concerned, with the glasses for the left eye which I
prescribed — the eye which I operated — she could see only forms but not read. That is onthe left eye.
"Q How about the right eye?"A The same, although the vision on the right eye is even better than the left
eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November
1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had beenunder medical supervision up to 1963 with apparently good vision", the doctor had this tosay:
"Q When yon said that she had apparently good vision you mean that she was ableto read?
"A No, not necessarily, only able to go around, take care of herself and see.This I can tell you, this report was made on pure recollections and I recall she was usingher glasses although I recall also that we have to give her medicines to improve hervision, some medicines to improve her identification some more.
xxx xxx xxx"Q What about the vision in the right eve, was that corrected by the glasses?"A Yes, with the new prescription which I issued on 80 August 1960. It is in the
clinical record."Q The vision in the right eye was corrected?"A Yes That is the vision for distant objects."(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).The foregoing testimony of the ophthalmologist who treated the deceased and,
therefore, has first hand knowledge of the actual condition of her eyesight from August,1960 up to 1963, fully establish the fact that notwithstanding the operation and removalof the cataract in her left eye and her being fitted with aphakic lens (used by cataractpatients), her vision remained mainly for viewing distant objects and not for readingprint. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is noevidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not haveread the provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumentalwitnesses stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, theappearance of the will, Exhibit "D", acquires striking significance. Upon its face, thetestamentary provisions, the attestation clause and acknowledgment were crammed togetherinto a single sheet of paper, to much so that the words had to be written very close onthe top, bottom and two sides of the paper, leaving no margin whatsoever; the word "and"had to be written by the symbol "&", apparently to save on space. Plainly, the testamentwas not prepared with any regard for the defective vision of Doña Gliceria. Further,typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso","MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for"acknowledge'', remained uncorrected, thereby indicating that execution thereof must havebeen characterized by haste. It is difficult to understand that so important a documentcontaining the final disposition of one's worldly possessions should be embodied in aninformal and untidily written instrument; or that the glaring spelling errors should haveescaped her notice if she had actually retained the ability to read the purported will andhad done so. The record is thus convincing that the supposed testatrix could not havephysically read or understood the alleged testament, Exhibit "D", and that its admissionto probate was erroneous and should be reversed.
That Doña Gliceria should be able to greet her guests on her birthday, arrangeflowers and attend to kitchen tasks shortly prior to the alleged execution of thetestament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no wayproves; that she was able to read a closely typed page, since the acts shown do notrequire vision at close range. It must be remembered that with the natural lenses removed,her eyes had lost the power of adjustment to near vision, the substituted glass lensesbeing rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to"G-3") by her indicative of ability to see at normal reading distances. Writing or signingof one's name, when sufficiently practiced, becomes automatic, so that one need only tohave a rough indication of the place where the signature is to be affixed in order to beable to write it. Indeed, a close examination of the checks, amplified in the photograph,Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrixcould not see at normal reading distance: the signatures in the checks are written farabove the printed base, lines, and the names of the payees as well as the amounts writtendo not appear to be in the handwriting of the alleged testatrix, being in a much firmerand more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria delRosario was, as appellant oppositors contend, not unlike a blind testator, and the dueexecution of her will would have required observance of the provisions of Article 808 ofthe Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, byone of the subscribing witnesses, and again, by the notary public before whom the will isacknowledged."
The rationale behind the requirement of reading the will to the testator if he isblind or incapable of reading the will himself (as when he is illiterate), 18 is to makethe provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes. That the aim of the law is to insure that the dispositions ofthe will are properly communicated to and understood by the handicapped testator, thusmaking them truly reflective of his desire, is evidenced by the requirement that the willshould be read to the latter, not only once but twice, by two different persons, and thatthe witnesses have to act within the range of his (the testator's) other senses. 19
In connection with the will here in question, there is nothing in the records toshow that the above requisites have been complied with. Clearly, as already stated, the1960 will sought to be probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al., againstthe denial by the probate court of their petition for the removal of Consuelo GonzalesVda. de Precilla as special administratrix of the estate of the deceased Doña Gliceria(Petition, G.R. No. L-26615, Annex "B").
The oppositors' petition was based allegedly on the existence in the specialadministratrix of an interest adverse to that of the estate. It was their contention thatthrough fraud her husband had caused the deceased Gliceria del Rosario to execute a deedof sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed untosaid Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3parcels of land and the improvements thereon, assessed at P334,050.00, for the sum ofP30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex"P", Petition) reasoned out that since the properties were already sold no longer formpart of the estate. The conflict of interest would not be between the estate and thirdparties, but among the different claimants of said properties, in which case, according tothe court, the participation of the special administratrix in the action for annulmentthat may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questionedwas precisely the validity of the conveyance or sale of the properties. In short, ifproper, the action for annulment would have to be undertaken on behalf of the estate bythe special administratrix, affecting as it does the property or rights of the deceased.20 For the rule is that only where there is no special proceeding for the settlement ofthe estate of the deceased may the legal heirs commence an action arising out of a rightbelonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and validity ofthe deed of sale, an ordinary and separate action would have to be instituted, the matternot falling within the competence of the probate court. 22 Considering the facts thenbefore it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on10 January 1961, when she was already practically blind; and that the consideration ofP30,000.00 seems to be unconscionably small for properties with a total assessed value ofP334,050.00, there was likelihood that a case for annulment might indeed be filed againstthe estate or heirs of Alfonso Precilla. And the administratrix, being the widow and heirof the alleged transferee, cannot be expected to sue herself in an action to recoverproperty that may turn out to belong to the estate. 22 Not only this, but the conduct ofthe special administratrix in securing new copies of the owner's duplicates of TCT Nos.66201, 66202, and 66204, without the court's knowledge or authority, and on the pretextthat she needed them in the preparation of the inventory of the estate, when she must havealready known by then that the properties covered therein were already "conveyed" to herhusband by the deceased, being the latter's successor, and having the contract bind theland through issuance of new titles in her husband's name cannot but expose her to thecharge of unfitness or unsuitableness to discharge the trust, justifying her removal fromthe administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors' motion torequire the Hongkong and Shanghai Bank to report all withdrawals made against the funds ofthe deceased after 2 September 1965 and (2) the motion for annotation of a lis pendensnotice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that itcould not have taken action on the complaint against the alleged withdrawals from the bankdeposits of the deceased, because as of that time the court had not yet been apprised thatsuch deposits exist. Furthermore, as explained by the special administratrix in herpleading of 30 October 1965, the withdrawals referred to by the oppositors could be thosecovered by checks issued in the name of Gliceria del Rosario during her lifetime butcleared only after her death. That explanation, which not only appears plausible but has
not been rebutted by the petitioners-oppositors, negates any charge of grave abuse inconnection with the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules ofCourt are clear: notice of the pendency of an action may be recorded in the office of theregister of deeds of the province in which the property is situated, if the action affects"the title or the right of possession of (such) real property." 23 In the case at bar,the pending action which oppositors seek to annotate in the records of TCT Nos. 81735,81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). Aspreviously discussed in this opinion, however, that case is concerned merely with thecorrectness of the denial by the probate court of the motion for the removal of ConsueloGonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria delRosario. In short, the issue in controversy there is simply the fitness or unfitness ofsaid special administratrix to continue holding the trust; it does not involve or affectat all the title to, or possession of, the properties covered by said TCT Nos. 81735,81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that canproperly be annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate thealleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. Thepetition in G.R. No. L-26615 being meritorious, the appealed order is set aside and thecourt below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla,and appoint one of the heirs intestate of the deceased Doña Gliceria Avelino del Rosarioas special administrator for the purpose of instituting action on behalf of her estate torecover the properties allegedly sold by her to the late Alfonso D. Precilla. And in CaseG.R. No. L-26864, petition is dismissed. No costs.
THE COURT OF APPEALS, PROCERFINA VILLANUEVA, PROSPERIDAD VILLANUEVA, RAMON VILLANUEVA,ROSA VILLANUEVA, VIRGINIA NEPOMUCENO, PAULA NEPOMUCENO, TARCELA NEPOMUCENO, MERCEDESVILLANUEVA, ADELAIDA VILLANUEVA, APARICION VILLANUEVA, JOSEFINA VILLANUEVA, BETTY
VILLANUEVA, BOBBY VILLANUEVA, MERLINDA VILLANUEVA, MORBINA VILLANUEVA, FLORITA VILLANUEVA,DIONISION VILLANUEVA, and EDITHA VILLANUEVA, respondents.
QUISUMBING, J.:
This petition for review seeks the reversal of the Decision 1 of the respondent Court of Appeals promulgated on September 28, 1992, in CA G.R. CV No. 27427, as well as of the Resolution promulgated on February 4, 1993, which denied the petitioners' Motion for Reconsideration.
Petitioners Josefina Villanueva-Mijares, Waldetrudes Villanueva-Nolasco, Godofredo Villanueva, Eduardo Villanueva, Germelina Villanueva-Fulgencio, and Milagros Villanueva-Arquisola are the legitimate children of the late Leon Villanueva. Petitioner Concepcion Macahilas vda. de Villanueva is his widow. Leon was one of eight (8) children of Felipe Villanueva, predecessor-in-interest of the parties in the present case.
Private respondents were the plaintiffs-appellants in CA G.R. No. 27427, entitled "Procerfina Villanueva, et al., v. Josefina Villanueva-Nolasco, et al." They are related by blood to the petitioners as descendants of Felipe.
The pertinent facts of the case are not in dispute.
During his lifetime, Felipe, owned real property described as follows:
A parcel of land, situated at Estancia, Kalibo, Capiz. Bounded on the N. by the Provincial Road to New Washington; on the S. by Nicanor Gonzales; on the
E. by Nicanor Gonzales; and on the W. by Leon Barrientos and Mauricio Parojinog, containing an area of fifteen thousand three hundred thirty-six (15,336) square meters, more or less declared in the name of Felipe Villanuevaunder Tax Declaration No. 3888 and assessed at Three Hundred Ten (P310.00) Pesos. 2
Felipe begot the following legitimate children: Simplicio, Benito, Leon, Nicolasa, Eustaqio, Camila, Fausta, and Pedro.
Upon Felipe's death, ownership of the land was passed on to his children.
In 1952, Pedro, one of the children of Felipe got his share equivalent to one-sixth (1/6) of the property with an area of one thousand nine hundred five (1,905) square meters and had it declared under his name pursuant to Tax Declaration No. 8085.
The remaining undivided portion of the land is described as follows:
A parcel of land situated at Estancia, Kalibo, Capiz, bounded on the N. by theNational Road to New Washington; on the S. by Nicanor Gonzales; on the E. by Pedro Villanueva and on the W. by Leon Barrientos and Mauricio Parojinog, containing an area of eleven thousand nine hundred fifty-nine (11,959) square meters, more or less and declared under Tax Declaration No. 8086 and assessed at Three Hundred Thirty-Three Pesos and Forty Centavos (P333.40). 3
This was held in trust by Leon for his co-heirs. During Leon's lifetime, his co-heirs madeseveral seasonable and lawful demands upon him to subdivide and partition the property, but for one reason or another, no subdivision took place.
After the death of Leon in August 1972, private respondents discovered that the shares of four of the heirs of Felipe, namely, Simplicio, Nicolasa, Fausta and Maria Baltazar, spouse of Benito, was purchased by Leon as evidenced by a Deed of Sale executed on August 25, 1946 but registered only in 1971. It also came to light that Leon had, sometime in July 1970, executed a sale and partition of the property in favor of his own children, herein petitioners. By virtue of such Deed of Partition, private respondents had succeededin obtaining Original Certificate of Title (OCT) No. C-256. On April 25, 1975, petitionersmanaged to secure separate and independent titles over their pro-indiviso shares in their respective names.
Private respondents then filed a case for partition with annulment of documents and/or reconveyance and damages with the Regional Trial Court of Kalibo, Aklan, docketed as CivilCase No. 2389. Private respondents contended that the sale in favor of Leon was fraudulently obtained through machinations and false pretenses. Thus, the subsequent sale of the lot by Leon to his children was null and void despite the OCT in his favor.
Petitioners, for their part, claimed that the sale by Simplicio, Fausta, Nicolasa, and Maria Baltazar was a valid sale; that private respondent Procerfina even signed as an instrumental witness to the Deed of Sale; that Maria Baltazar, widow of Benito, as administrator of her husband's estate, had the right to sell the undivided share of Benito; that the basis for the issuance of the OCT in Land Registration Case No. K-231 wasthe sale by his co-heirs to Leon; that the order of default issued in Land Registration Case No. K-231 was against the whole world; that prescription had set in since they had been in possession of the property in the concept of owners thereof since August 29, 1946,up to the present; and that private respondents were estopped since no trust relationship existed between the litigants.
After trial, the Regional Trial Court of Kalibo rendered its decision in Civil Case No. 2389, declaring "the defendants the legal owners of the property in question in accordancewith the individual titles issued to them." 4
The trial court also declared plaintiffs' action already barred by res judicata.
Dissatisfied, herein private respondents elevated the case to the Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 27427.
On appeal, the private respondents conceded the right of Simplicio, Nicolasa, and Fausta to sell their respective shares but disputed the authority of Maria Baltazar to convey anyportion of her late husband's estate, since the latter was his capital and did not form part of the conjugal property. 5
On September 28, 1992, respondent appellate court rendered its decision, the dispositive portion of which reads:
WHEREFORE, the appealed judgement is REVERSED. Appellants Procerfina Villanueva, Prosperidad Villanueva, Ramon Villanueva and Rosa Villanueva are hereby adjudged rightful co-owners pro indiviso of an undivided one-sixth (1/6) portion of the property litigated upon (Lot 3789, Psc-36), as heirs of their late father, Benito Villanueva; and the appellees are hereby ordered to execute a registerable document conveying to the said appellants their one-sixth (1/6) portion of subject property.
Conformably, the parties concerned are required to agree on a project of partition, for the segregation of the one-sixth (1/6) portion adjudicated to said appellants; otherwise, should they fail to do so within a reasonable time, any interested party may seek relief from the trial court a quo, which is hereby directed, in that eventuality, to cause the partition of the subjectproperty in accordance with pertinent rules, and this pronouncement. Costs against appellee.
SO ORDERED. 6
The Court of Appeals ruled that under the Old Civil Code and applicable jurisprudence, Maria Baltazar had no authority to sell the portion of her late husband's share inherited by her then minor children since she had not been appointed their guardian. Respondent court likewise declared that as far as private respondents Procerfina, Prosperidad, Ramon and Rosa, were concerned, the Deed of Sale of August 25, 1946 was "unenforceable." 7
Respondent appellate court also ruled that the prescription period had not run in favor ofLeon since private respondents had always known that Leon was the administrator of the estate. It was only in 1975 when their suspicion were aroused and they inquired about the status of the land. 8
Dissatisfied with the ruling of the respondent appellate court, herein petitioners now come before this Court assigning the following errors:
I
IN NOT HOLDING THAT THE PRIVATE RESPONDENTS ARE NOT BARRED BY LACHES, ESTOPPELIN PAIS, AND RES JUDICATA, THE RESPONDENT, THE COURT OF APPEALS, HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT, AMONG THEM, TIJAM V. SIBONGHANOY, NO. L-21450, APRIL 15, 1968, 23 SCRA 29.
II
IN HOLDING THAT THE DEED OF SALE DATED AUGUST 25, 1946, EXHIBIT "I", ALSO EXHIBIT "C", IS UNENFORCEABLE AGAINST THE PRIVATE RESPONDENTS FOR BEING AN UNAUTHORIZED CONTRACT, THE RESPONDENT, THE COURT OF APPEALS, HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT, THE WEIGHT OF THE EVIDENCE BEINGTHAT MARIA BALTAZAR, THE PRIVATE RESPONDENTS' MOTHER, HAD THE AUTHORITY TO CONVEY THE ONE-SIXTHS (1/6) SHARE OF THE LATE BENITO VILLANUEVA TO THE PETITIONERS, AND/OR THAT HER ACT WAS SUBSEQUENTLY RATIFIED BY THE PRIVATE RESPONDENTS.
III
IN GRANTING THE APPEAL AND CONSEQUENTLY, IN REVERSING THE COURT A QUO, THE RESPONDENT, THE COURT OF APPEALS, HAS DECIDED A QUESTION OF SUBSTANCE IN A WAYPROBABLY NOT IN ACCORD WITH THE LAW OR APPLICABLE DECISIONS OF THIS HONORABLE COURT. 9
The grounds relied upon by the petitioners may be subsumed in two issues, to wit:
(1) Whether or not the appellate court erred in failing to declare action by the private respondents to recover the property in question barred by laches, estoppel, prescription, and res judicata; and
(2) Whether or not the appellate court erred in declaring the Deed of Sale of August 25, 1946 unenforceable against the private respondents for being an unauthorized contract.
Petitioners citing Tijam v. Sibonghanoy, 23 SCRA 29 (1968), contend that the action of the private respondents was already barred by laches. 10 They argue that private respondents filed their action more than twenty-nine (29) years too late, counted from the date Maria Baltazar signed the questioned Deed of Sale of August 26, 1948.
Laches is negligence or omission to assert a right within a reasonable time, warranting the presumption that the party entitled to assert it has either abandoned or declined to assert it. 11 Its essential elements are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (2) delay in asserting complainant's right after he had knowledge of the defendant's conduct and after he has an opportunity to sue; (3) lack of knowledge or notice on the part of the defendantthat the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant. 12
In Chavez v. Bonto-Perez, 242 SCRA 73, 80 (1995), we said there is no absolute rule on what constitutes laches. It is a creation of equity and applied not really to penalize neglect or sleeping upon one's rights but rather to avoid recognizing a right when to do so would result in a clearly inequitable situation. The question of laches, we said, is addressed to the sound discretion of the court and each case must be decided according to its particular circumstances.
At the time of signing of the Deed of Sale of August 26, 1948, private respondents Procerfina, Prosperidad, Ramon and Rosa were minors. They could not be faulted for their failure to file a case to recover their inheritance from their uncle Leon, since up to theage of majority, they believed and considered Leon their co-heir and administrator. It wasonly in 1975, not in 1948, that they became aware of the actionable betrayal by their uncle. Upon learning of their uncle's actions, they filed an action for recovery. Hence, the doctrine of stale demands formulated in Tijam cannot be applied here. They did not sleep on their rights, contrary to petitioners' assertion. Under the circumstances of the instant case, we do not think that respondent appellate court erred in considering privaterespondents' action. The action was not too late.
Furthermore, when Felipe Villanueva died, an implied trust was created by operation of lawbetween Felipe's children and Leon, their uncle, as far as the 1/6 share of Felipe. Leon'sfraudulent titling of Felipe's 1/6 share was a betrayal of that implied trust.
Petitioners aver that the failure of Maria Baltazar's children to bringing their action in1969 when they had reached the age of majority meant that they had impliedly ratified the Deed of Sale and are now estopped to assail the same. They erroneously relied on Asiatic Integrated Corporation v. Alikpala, 67 SCRA 60 (1975). In that case, payments made by Asiatic pursuant to the terms of the contract accrued to the benefit of the City without protest on the part of the municipal board, such that the Board already acquiesced to the validation of the contract. In the instant case, there is no implied ratification, no benefit accruing to the children of Maria Baltazar.
Neither is the action barred by prescription In Vda. de Cabrera v. Court of Appeals, 267 SCRA 339, 353 (1997), and Sta. Ana, Jr. v. Court of Appeals, 281 SCRA 624, 629 (1997), we held that an
action for reconveyance of a parcel of land based on implied or constructive trust prescribes in 10 years, the point of reference being the date of registration of the deed or the date of the issuance of the certificate of title of the property. Here the questioned Deed of Sale was registered only in 1971. Private respondents filed their complaint in 1975, hence well within the prescriptive period.
Petitioners assert that the disputed property is registered. Relying on Cachero v. Marzan, 196 SCRA 601, 610 (1991), and Cureg v. Intermediate Appellate Court, 177 SCRA 313, 320 (1989), where we held that a land registration case is an action in rem binding upon the whole world, and considering that the private respondents failed to object to the registration of the realty in question, then res judicata had set in. True, but notwithstanding the binding effect of the land registration case upon the private respondents, the latter are not deprived of a remedy. While a review of the decree of registration is no longer available after the expiration of the one-year period from entry thereof, an equitable remedy is still available. Those wrongfully deprived of their property may initiate an action for reconveyance of the properly. 13
As to the second issue, we find no reversible error committed by the respondent appellate court in declaring the Deed of Sale unenforceable on the children of Maria Baltazar. As correctly pointed out by the Court of Appeals, there was no question as to the sale of theshares of Simplicio, Nicolasa, and Fausta, to their brother Leon. But not so with Maria Baltazar concerning the share of her late husband, Benito, to Leon. Under the law then prevailing at the time of the demise of her spouse, her husband's share in the common inheritance pertained to her minor children who were her late husband's heirs and successors-in-interest.
As explained by the Court of Appeals:
Since the late Benito Villanueva, son of Felipe Villanueva, died before the effectivity of Republic Act No. 386, otherwise known as the New Civil Code of the Philippines, the old Civil Code governs the distribution and disposition of his intestate estate. Thereunder, the legitime of the children and descendants consisted of two-thirds (2/3) of the hereditary estate of the father and of the mother (first paragraph, Article 808); and the widower or widow, as the case may be, who, at the time of death of his or her spouse, wasnot divorced or if divorced, due to the fault of the deceased spouse, was entitled to a portion in usufruct equal to that which pertains as legitime to each of the legitimate children or descendants not bettered (Article 834, 1st paragraph.) 14
In addition, under the jurisprudence prevailing at the time of Benito's death, the rule was that while parents may be the guardians of their minor children, such guardianship didnot extend to the property of their minor children. 15 Parents then had no power to dispose of the property of their minor children without court authorization. 16 Without authority from a court, no person could make a valid contract for or on behalf of a minor or convey any interest of a minor in land. 17 Admittedly, Maria Baltazar showed no authorization from a court when she signed the Deed of Sale of August 26, 1948, allegedly conveying her children's realty to Leon.
While it is true that the Court of Appeals upheld the validity of the Deed of Sale, it nevertheless correctly ruled that the sale by Maria Baltazar of her children's share was invalid. From its execution up to the time that an action for reconveyance was instituted below by the private respondents and to the present, the Deed of Sale of August 26, 1948, remained unenforceable as to private respondents Procerfina, Ramon, Prosperidad, and Rosa.Article 1529 of the old Civil Code, 18 which was the prevailing law in 1948 and thus governed the questioned Deed of Sale, clearly provided that a contract is unenforceable when there is an absence of authority on the part of one of the contracting parties. Interpreting Article 1529 of the old Civil Code, the Court has ruled that the nullity of the unenforceable contract is of a permanent nature and it will exist as long the unenforceable contract is not duly ratified. The mere lapse of time cannot give efficacy to such a contract. The defect is such that it cannot be cured except by the subsequent ratification of the unenforceable contract by the person in whose name the contract was executed. 19 In the instant case, there is no showing of any express or implied
ratification of the assailed Deed of Sale by the private respondents Procerfina, Ramon, Prosperidad, and Rosa. Thus, the said Deed of Sale must remain unenforceable as to them.1�wphi1.n�t
WHEREFORE, the petition is DENIED for lack of merit, and the assailed judgment of the Court of Appeals is AFFIRMED. Let the records of this case be remanded to the lower court for execution of the judgment. Costs against petitioners.
