Republic of the Philippines SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J.:

This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.

On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged advances consisted of P58,147.40 spent for the

payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." 4

Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides:

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

We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate

of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ."7

On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation

under the provisions of Article 133 of the Civil Code. 9

The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of

master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if any, upon the death of either, belonged to the survivor. 17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:

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This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. 19

xxx xxx xxx

There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 20

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

It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the

law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other.

However, as we have warned:

xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership.

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

WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

SECOND DIVISION

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably aforged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl

friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counter-petition for administration and preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).

To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of the non-appearance of her counsel at the hearing. She moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record).

Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should she persist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline in her letter dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case for having allegedly become moot and academic.

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

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

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

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic because she is no longer employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

SO ORDERED.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 42258 September 5, 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.

DIAZ, J.:

There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935, praying for the reconsideration of the decision of the court and that of the same date, praying for a new trial.

The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:

1. That the testatrix did not personally place her thumbmark on her alleged will;

2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will where she should place her thumbmarks;

3. That the will in question was not signed by the testatrix on the date indicated therein;

4. That the testatrix never made the will in question; and

5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition to make it.

We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in her brief have not been duly considered, whether some fact or detail which might have led us to another conclusion has been overlooked, or whether the conclusions arrived at in our decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She had a slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her still suffering from said illness but there was no indication that she had but a few days to live. She ate comparatively well and conserved her mind and memory at least long after noon of September 7, 1933. She took her last nourishment of milk in the morning of the following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to make a will and bequeath her property to the petitioner Victorio Payad in

compensation according to her, for his diligent and faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who had been in her home from childhood. The will was written by Attorney Almario in his own handwriting, and was written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all the contents of the document and requested Attorney Almario to write her name where she had to sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary strength to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney Almario proceeded to write the name of the testatrix on the three pages composing the will and the testatrix placed her thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in order to place the mark between her name and surname, after she herself had moistened the tip of her thumb with which she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later signed the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances above stated.

In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that she never made said will because she was no longer physically or mentally in a condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.

Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of September 7, 1933, in the house of the deceased where they were then living, and that the first time that they saw him there was at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by woman named Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was situated at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen which was situated under the house. Under such circumstances it is not strange that the two did not see the testatrix when, according to the evidence for the petitioner, she made her will and signed it by means of her thumbmark. In order to be able to see her and also Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room where the will was prepared by Attorney Almario, but they did not do so.

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she could not move and that she could hardly be understood because she could no longer enunciate, making it understood thereby, that in such condition it was absolutely impossible for her to make any will. The attorney for the oppositor insists likewise and more so because, according to him and his witness Paz de Leon, two days before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make herself understood.

The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate them, we have of record the testimony of the physician of the deceased and the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome of these proceedings does not affect them in the least. The two testified that two, three or four days before the death of the testatrix, they visited her in her home, the former professionally, and the

latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a conversation. They stated that she spoke to them intelligently; that she answered all the questions which they had put to her, and that she could still move in spite of her weakness.

In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration is unfounded.

The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions not to open it until after her death; (2) that there are witnesses competent to testify on the letter in question, in addition to other evidence discovered later, which could not be presented at the trial; (3) that in the letter left by the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the property in question should become Yangco's. From this alleged fact, the oppositor infers that the deceased never had and could not have had the intention to make the will in question, and (4) that said oppositor knew of the existence of said letter only after her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named Jose Cortes.

Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the will of the deceased but he did not do so because after seeing her he had been convinced that she could not make a will because she had lost her speech and her eyes were already closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by the oppositor, are attached to both motions for a new trial.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor the fact that the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment was rendered only on January 15, 1936, or eight months later.

The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch as the judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed from the decision of the lower court and it was her duty, under the circumstances, to inform this court of the discovery of said allegedly newly discovered evidence and to take advantage of the effects thereof because, by so doing, she could better support her claim that the testatrix made no will, much less the will in question. Said evidence, is not new and is not of the nature of that which gives rise to a new trial because, under the law, in order that evidence may be considered newly discovered evidence and may serve as a ground for a new trial, it is necessary (a) that it could not have been discovered in time, even by the exercise of due diligence; (b) that it be material, and (c) that it also be of such a character as probably to change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).

The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It is simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered important or

material evidence but this court has not the letter in question before it, and no attempt was ever made to present a copy thereof.

The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more competent than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the deceased was almost unconscious, was unintelligible and could not speak, it does not necessarily mean that on the day she made her will, September 7, 1933, she had not recovered consciousness and all her mental faculties to capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not and can not be newly discovered evidence of the character provided for by law, not only because it does not exclude the possibility that testatrix had somewhat improved in health, which possibility became a reality at the time she made her will because she was then in the full enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court of First Instance, Attorney Viola was present, and the oppositor then could have very well called him to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150 of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the last witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the will of the deceased in his favor on September 5, 1933.

COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS: No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the other party, Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney Fernando Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am going waive the presentation of the witness Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party would not admit that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice to the other party's calling the witness it may wish to call.

COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have been because she considered his testimony unimportant and unnecessary, and at the

present stage of the proceedings, it is already too late to claim that what said attorney may now testify is a newly discovered evidence.

For the foregoing considerations, those stated by this court in the original decision, and the additional reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for reconsideration and a new trial filed by the oppositor are hereby denied, ordering that the record be remanded immediately to the lower court. So ordered.

Republic of the Philippines SUPREME COURT

Manila

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.

PARAS, C.J.:

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 and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all 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 us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of

certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by 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 a signature as a thumbmark, the latter having been held sufficient by this Court in the cases 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 signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason 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 there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant, vs. FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant. Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1just decided by this court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon, deceased. It is alleged in the petition of the probate 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 to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and 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 of the deceased on various grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being, from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe that this contention 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 any estate, real or personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that 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 caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each 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 section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will. Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute 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 law the inference that the persons who signs the name of the testator must sign his own name also. 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 person who is unable to write may be signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine 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 (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases are and the question involved in each one of them. It says:

The testatrix was not able 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 case in which the person who signed the will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name nowhere appeared attached to the will as the one who executed it. The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe, by the testator, Richard 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 the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the person who was authorized to sign the name of the testator to the will actually failed to sign such name but instead signedhis own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said later will not the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly require that, when the testator or testatrix is unable or does not know how to sign, the person who, in the presence and under the express direction of either of them, writes in the name of the said testator or testatrix must also sign his own name thereto, it being sufficient for the validity of the will that the said person so requested to sign the testator or testatrix write the name of either in his own handwriting.

Since this court began to decide cases with regard to the form, conditions and validity of wills executed in accordance with the provisions of the Code of Civil Procedure, never has the specific point just above mentioned been brought into question. Now for the first time is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being required by the said code, the signature of the name of the person who, at the request of the testator or testatrix, writes the name of either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in which, as will be seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its observance in cases where the testator or testatrix is unable or does not know how to sign his or her name, expressly prescribed the practical method of complying with the provisions of the law on the subject. Among these decisions several were written by various justices of this court, some of whom are no longer on this bench, as they have ceased to hold such position.

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a will, reads as follows:

Wills, authentication of . — Where a will is not signed by a testator but by some other person in his presence and by his direction, such other person should affix the name of the testator thereto, and it is not sufficient that he sign his own name for and instead of the name of the testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will, states:

1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the Civil Procedure; consequently where a testator is unable to sign his name, the person signing at his request must write at the bottom of the will the full name of the testator in the latter's presence, and by his express direction, and then sign his own name in full.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements appear:

Wills; inability to sign; signature by another. — The testatrix was not able to sign her name to the will, and she requested another person to sign it for her. Held, That the will was not duly executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)

The following syllabus precedes decision No. 3907:4

Execution of wills. — Where it appears in a will that the testator has stated that by reason of his inability to sign his name he requested one of the three witnesses present to do so, and that as a matter of fact, the said witness wrote the name and surname of the testator who, stating that the instrument executed by him contained his last will, put the sign of the cross between his said name and surname, all of which details are set forth in a note which the witnesses forthwith subscribed in the presence of the testator and of each other, said will may be probated.

When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity of a will have been complied with, the fact that the witness who was requested to sign the name of the testator, omitted to state the words 'by request of .......... the testator,' when writing with his own hand the name and surname of the said testator, and the fact that

said witness subscribed his name together with the other witnesses and not below the name of the testator, does not constitute a defect nor invalidate the said will.

The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria Siason:5

The recital of the name of the testator as written below the will at his request serves as a signature by a third person.

Moreover among the grounds given as a basis for this same decision, the following appears:

In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out the correct formula for a signature which ought to be followed, but did not mean to exclude any other for substantially equivalent.

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:

The testatrix was unable to sign her will with her own hand and requested another person to sign for her in her presence. This the latter did, first writing the name of the testatrix and signing his own name below:Held, That the signature of the testatrix so affixed is sufficient and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of another name before that of the testator when such name may be treated as nonexistent without affecting its validity.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither affirm nor deny, because a specific determination either way is unnecessary, in our opinion the signature for the testatrix placed outside of the body of the will contains the name of the testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other witnesses then present. And this fully complies with the provisions of section 618 of the Act.

It is true that in none of the decisions above quoted was the rule established that the person who, at the request of the testator or testatrix, signed the latter's or the former's name and surname to the will must affix his own signature; but it no less true that, in prescribing the method in which the provisions of the said section 618 to be complied with, it was stated that, in order that a will so executed might be admitted to probate, it was an indispensable requisite that the person requested to sign in place of the testator or testatrix, should write the latter's or the former's name and surname at the foot of the will in the presence and under the direction of either, as the case might be, and should afterwards sign the instrument with his own name and surname.

The statement that the person who writes the name and surname of the testator or testatrix at the foot of the will should likewise affix his own signature thereto, name and surname, though it be considered to be neither a rule nor a requisite necessary to follow for the admission of the will to

probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the aforesaid decisions, it was deemed to be a complement and integral part of the required conditions for the fulfillment of the provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating in the decisions hereinabove quoted that the name and surname of the said person should be affixed by him, no act prohibited by law was recommended or suggested, nor may such a detail be understood to be contrary or opposed to the plain provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even prudent to require that the person requested to write the name of the testator or testatrix in the will also sign the instrument with his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of this country and for sake of an upright administration of justice, it should be maintained that such a signature must appear in the will, since no harm could accrue to anyone thereby and, on the contrary, it would serve as a guarantee of the certainty of the act performed and also might eliminate some possible cause of controversy between the interested parties.

The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695 of the Civil Code and, while he conceded that, in the examination and qualification of a will for the purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled by a traditional conception of the laws which he has known since youth, relative to the form of execution of testaments, he believed it to be a vary natural and common sense requisite that the signature, with his own name and surname, of the person requested to write in the will the name and surname of the testator or testatrix should form a part of the provisions of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before referred to — a requisite deemed to be convenient and prudent in the majority opinion — formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The aforementioned different decisions were drawn up in the form in which they appear, and signed without dissent by all the justices of the court on various dates. None of them hesitated to sign the decisions, notwithstanding that it was expressly held therein that the person above mentioned should, besides writing in the will the name and surname of the testator or testatrix, also sign the said instrument with his own name and surname.

Without being understood to criticize the provision contained in the said section 618 of the Code of Civil Procedure it will not be superfluous to mention that the system adopted in this section is the same as was in vogue under the former laws that governed in these Islands, with respect to witnesses who were not able or did not know how to sign their testimony given in criminal or civil cases, in which event any person at all might write the name and surname of the witness who was unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and, this done, it was considered that the instrument had been signed by the witness, though it is true that all these formalities were performed before the judge and the clerk or secretary of the court, which thereupon certified that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who writes the name and surname of the testator or testatrix does so by the order and express direction of the one or of the other, and this fact must be recorded in the will; but in the matter of the signature of a deposition, the witness, who could not or did not know how to sign, did not need to

designate anyone to write the deponent's name and surname, and in practice the witness merely made a cross beside his name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among them those of the Civil Code, the person or witness requested by the testator or testatrix who was not able or did not know how to sign, authenticated the will by signing it with his own name and surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the following provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able to sign, one of the attesting witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall be done if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the old laws with respect to the signing of a will by a testator or testatrix who did not know how or who could not sign, consisted in that the person appointed and requested by the testator or testatrix to sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will and after the words "at the request of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and inspired by these legal provisions, which it may said, are traditional to them in the ideas they have formed of the existing laws in the matter of procedure in compliance therewith as regards the execution and signing of a will, should have believed that, after the name and surname of the testator or testatrix had been written at the foot of the will, the person who signed the instrument in the manner mentioned should likewise sign the same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will with his own name and surname, and since this suggestion is not opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition of this country, does not prejudice the testator nor those interested in an inheritance, and, on the contrary, constitutes another guarantee of the truth and authenticity of the letters with which the name and surname of the testator of testatrix are written, in accordance with his or her desire as expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs observed in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake of a good administration of justice, because it is not a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts and which in the present case has filed a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises, but in the opinion of the undersigned, are conducive to the realization of the purposes of justice, have impelled him to believe that the proposition should be enforced that the witness requested or invited by the testator or testatrix to write his or her name to the will, should also subscribed the instrument by signing thereto his own name and surname; and therefore, with the proper finding in this sense, and reversal of the judgment appealed from, that the court below should be ordered to proceed with the probate of the will of the decedent, Maria Salomon, in accordance with the law.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

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

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

Jose W. Diokno for petitioner-appellee. Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano. Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and 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 allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator.1äw phï1.ñët

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

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all 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 opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said 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 by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed 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 the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); 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 recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, 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 the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures 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 and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, 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 as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the 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 testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full 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".

That the failure of witness Natividad to sign page three (3) was entirely through pure 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 clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make 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 require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, 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 the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

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

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

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs. ANASTACIA ABANGAN, ET AL., opponents-appellants.

Filemon Sotto for appellants. M. Jesus Cuenco for appellee.

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any

sheet of the will has been removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.

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 primordal 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 frustative of the testator's last will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

April 29, 1953

G.R. No. L-5826

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.

PARAS, C.J.:

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

who died in Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective,

because its attestation clause is not signed by the attesting witnesses. 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

attestation 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

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.

Wherefore, the appealed decision is reversed and the probate of the will in question

denied. So ordered with costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

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.

CARSON, J.:

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 subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller 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 act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion 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 room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription 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 been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

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

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

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.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must 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. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

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.

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

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house

in order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament (likelegado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate

the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

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.

STREET, J.:

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, the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses who testified — with details not necessary to be here specified — that the will was executed with all necessary external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness was 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 the proponent of the will.

When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to comprehend what he was 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 sound mind and disposing memory and that the will had been properly executed. He accordingly admitted 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 proof of a single attesting witness, without producing or accounting for the absence of the other two; and, secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the testator and of the three attesting witnesses are written 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 bay be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.

In the present case no explanation was made at the trial as to why all three of the attesting 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 was entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith the probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a 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 above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a sufficient number of attesting witnesses.

It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well taken, and the first assignment of error must be declared not be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)

There are at least two reason why the appellate tribunals are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference 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 of justice 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 than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute 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 in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question relates a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this 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 is duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late.

Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case

were therefore fully apprised that the question of the number of witnesses necessary to prove the will was in issue in the lower court.

The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental witnesses should be written on the left margin of each page, as required in said Act, and not upon the right margin, as in the will now before us; and upon this we are of the opinion that the will in question is valid. It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court.

Still some details at times creep into legislative enactments which are so trivial it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page — rather than on the right margin — seems to be 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 on the 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 a will void which was totally lacking in the signatures required to be written on its several 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 in the margin of each page containing written matter.

The instrument now before us contains the necessary signatures on every page, and the only point of deviation from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of signing adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin or the other.

The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate pages, were signed and not each written page; for as observed in that case by our late lamented Chief Justice, it was possible that in the will as there originally executed by the testratrix only the alternative pages had been used, leaving blanks on the reverse sides, which conceivably might have been filled in subsequently.

The controlling considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice Avanceña, in a case where the signatures were placed at the bottom of the page and not in the margin, said:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution o will 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, 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.

In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument.

It results that the legal errors assigned are not sustainable, and the judgment appealed from will be affirmed. It is so ordered, with costs against the appellants.

Johnson, Araullo, Avanceña and Villamor, JJ., concur.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-26808 May 23, 1969

REV. FATHER LUCIO V. GARCIA, petitioner, vs. HON. CONRADO M. VASQUEZ, respondent.

R E S O L U T I O N*

FERNANDO, J.:

This is a motion for the reconsideration of our decision of March 28, 1969, filed by petitioner. In the opinion rendered in that case, we stated: "Petitioner should have been aware that there is no escape from the payment of the corresponding docket fee, otherwise, the Court is not called upon to act on a complaint or petition. Nor does it suffice to vary the rule simply because there is only one decedent whose estate is thus to be disposed of by will that must first be probated. It is not farfetched or implausible that a decedent could have left various wills. Under such circumstances, there is nothing inherently objectionable in thus exacting the payment of a docket fee, every time a will is sought to be probated. Petitioner here could have sought the probate of the will presented by him in the same proceeding. He did not; he filed instead a separate action."

While not disputing the correctness of the above principle announced, petitioner, in this motion for reconsideration, would assert that he did not file a separate action "but instead elected to file the probate of the decedent's 1956 Will in the same Sp. Proc. 62618, then pending before the respondent Court." Petitioner's statement of fact is correct. Under the circumstances then, while the doctrine to the effect that a court of justice is not called upon to act on a complaint will petition in the absence of a payment of the corresponding docket fee every time a will is sought to be probated must be considered as subsisting, it finds no application to the present case, as petitioner did not file a separate action but instead sought to have the other will probated in the same special proceedings then pending before respondent Court. He is therefore entitled to have our decision reconsidered.

WHEREFORE, the decision of March 28, 1969 is set aside and the petition for certiorari granted, with petitioner being thus entitled to the refund of the second docket fee of P940.00 paid under Receipt No. J-1459986 issued on December 2, 1965, and the order of respondent Court of November 6, 1965 ordering such payment of the second docket fee annulled. Without pronouncement as to costs.lawphi1.ñet

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur. Teehankee and Barredo, JJ., took no part. Concepcion, C.J., and Castro, J., are on leave.

Republic of the Philippines SUPREME COURT

Manila

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.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 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, admitting to 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. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will

sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the 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 the meaning 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 not complied 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 day of 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 the term

"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 the scope 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 the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time 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 November 1977 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 witnesses and the testator's physician) asked the testator whether the contents of the document were of 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 in accordance 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 Order and 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 on the 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 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 of his 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 Appeals dated 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.

Republic of the Philippines SUPREME COURT

Manila

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 * ABAPO VELANO, 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 Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private 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 children and 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 before his 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 the Testator'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 of the 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 appeared as 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 cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who 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 the pages 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 oppositors claim to be defective is "we do certify that the testament was read by him and the 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 one another. 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 the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in 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 questioning once 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 the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

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

The attestation 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 the testator 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 will and 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 the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will 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 which the 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 theattesting 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 very same 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 law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency 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 English language 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 addresses appear 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 subscription is 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 the testator 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 said witnesses 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 testator signing 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 the aforestated 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 provision thereon 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 if it 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 defects or 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 plausible way 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 also signed 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 relied on 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 therefrom which 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 textual requirements 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 instrumental witnesses, 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. The formal 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 these primordial 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. The subsequent 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 that should 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), and ending with Sano vs. Quintana([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning withAbangan 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 opposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which 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 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 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 may be mentioned. In the first place, the Mojal, decision was concurred in by only four 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. It is 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 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, 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, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate 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, 61Sabado 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 undeniable inclination 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 become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases ofRodriguez 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 gone back 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 the will 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 details that 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 is hereby 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.

SECOND DIVISION

DANILO ALUAD, LEONORA

ALUAD, DIVINA ALUAD,

PROSPERO ALUAD, and

CONNIE ALUAD,

Petitioners,

- versus -

ZENAIDO ALUAD,

Respondent.

G.R. No. 176943

Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,

TINGA,

VELASCO, JR., and

BRION, JJ.

Promulgated:

October 17, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CARPIO MORALES, J.:

Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad

were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad

(Crispin).

Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677,

680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde

adjudicated the lots to herself.[1]

On November 14, 1981, Matilde executed a document entitled “Deed of

Donation of Real Property Inter Vivos”[2]

(Deed of Donation) in favor of

petitioners’ mother Maria[3]

covering all the six lots which Matilde inherited from

her husband Crispin. The Deed of Donation provided:

That, for and in consideration of the love and affection of the

DONOR [Matilde] for the DONEE [Maria], the latter being adopted and

hav[ing] been brought up by the former the DONOR, by these presents,

transfer and convey, BY WAY OF DONATION, unto the DONEE the

property above-described, to become effective upon the death of the

DONOR, but in the event that the DONEE should die before the

DONOR, the present donation shall be deemed rescinded and [of] no

further force and effect; Provided, however, that anytime during the

lifetime of the DONOR or anyone of them who should survive, they

could use[,] encumber or even dispose of any or even all of the parcels

of land herein donated.[4] (Emphasis and underscoring supplied)

On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and

676 were issued in Matilde’s name.

On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of

Absolute Sale of Real Property.[5]

Subsequently or on January 14, 1992, Matilde executed a last will and

testament,[6]

devising Lot Nos. 675, 677, 682, and 680 to Maria, and her “remaining

properties” including Lot No. 674 to respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the

same year.[7]

On August 21, 1995, Maria’s heirs-herein petitioners filed before the

Regional Trial Court (RTC) of Roxas City a Complaint,[8]

for declaration and

recovery of ownership and possession of Lot Nos. 674 and 676, and damages

against respondent, alleging: That in 1978, plaintiff[s] possessed the two (2) parcels of land

above-described until January 1991 when defendant entered and

possessed the two (2) parcels of land claiming as the adopted son of

Crispin Aluad who refused to give back possession until Matilde Aluad

died in [1994] and then retained the possession thereof up to and until

the present time, thus, depriving the plaintiffs of the enjoyment of said

parcels of land x x x;

That after the death of Matilde R. Aluad, the plaintiffs succeeded

by inheritance by right of representation from their deceased mother,

Maria Aluad who is the sole and only daughter of Matilde Aluad[.][9]

To the complaint respondent alleged in his Answer.[10]

That Lot 674 is owned by the defendant as this lot was

adjudicated to him in the Last Will and Testament of Matilde Aluad x x

x while Lot 676 was purchased by him from Matilde Aluad. These two

lots are in his possession as true owners thereof.[11] (Underscoring

supplied)

Petitioners later filed a Motion for Leave to Amend Complaint Already Filed

to Conform to Evidence[12]

to which it annexed an Amended Complaint[13]

which

cited the donation of the six lots via Deed of Donation in favor of their mother

Maria. Branch 15 of the RTC granted the motion and admitted the Amended

Complaint.[14]

Respondent filed an Amended Answer[15]

contending, inter alia, that the

Deed of Donation is forged and falsified and petitioners’ change of theory showed

that “said document was not existing at the time they filed their complaint and was

concocted by them after realizing that their false claim that their mother was the

only daughter of Matild[e] Aluad cannot in anyway be established by them”;[16]

and

that if ever said document does exist, the same was already revoked by

Matilde “when [she] exercised all acts of dominion over said properties until she

sold Lot 676 to defendant and until her death with respect to the other lots without

any opposition from Maria Aluad.”[17]

The trial court, by Decision[18]

of September 20, 1996, held that Matilde

could not have transmitted any right over Lot Nos. 674 and 676 to respondent, she

having previously alienated them to Maria via the Deed of Donation. Thus it

disposed:

WHEREFORE, in view of the foregoing, judgment is hereby

rendered:

1. Declaring the plaintiffs as the rightful owners of the subject

Lots Nos. 674 and 676, Pilar Cadastre;

2. Ordering the defendant to deliver the possession of the subject

lots to the plaintiffs;

3. Ordering the defendant to pay the plaintiffs:

a. Thirty thousand pesos (P30,000.00) as attorney’s fees;

b. Twenty thousand pesos (P20,000.00), representing the

income from subject Lot 676, a year from 1991 up to the

time said lot is delivered to the plaintiffs, together with the

interest thereof at the legal rate until fully paid;

c. Ten thousand pesos (P10,000.00), representing the income

from the subject Lot No. 674, a year from 1991 up to the

time said lot is delivered to the plaintiffs, plus legal interest

thereof at the legal rate until fully paid; and

d. The costs of the suit.

Defendant’s counterclaim is ordered dismissed for lack of merit.

SO ORDERED.[19]

On petitioners’ motion, the trial court directed the issuance of a writ of

execution pending appeal.[20]

Possession of the subject lots appears to have in fact

been taken by petitioners.

By Decision[21]

of August 10, 2006, the Court of Appeals reversed the trial

court’s decision, it holding that the Deed of Donation was actually a

donation mortis causa, not inter vivos, and as such it had to, but did not, comply

with the formalities of a will. Thus, it found that the Deed of Donation was

witnessed by only two witnesses and had no attestation clause which is not in

accordance with Article 805 of the Civil Code, reading:

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

subscribed at the end thereof by the testator himself or by the testator’s

name written by some other person in his presence, and by his express

direction, and attested and subscribed by three or more credible

witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and

the instrumental witnesses of the will shall, also sign, as aforesaid, each

and every page thereof, except the last on the left margin and all the

pages shall be numbered correlatively in letters placed on the upper part

of each page.

The attestation shall state the number of pages used upon which

the will is written, and the fact that that testator signed the will and every

page thereof, or caused some other person to write his name, under his

express direction, in the presence of the instrumental witnesses, and that

the latter witnessed and signed the will and all the pages thereof in the

presence of the testator, and of one another.

If the attestation clause is in a language not known to the

witnesses, it shall be interpreted to them.

While the appellate court declared respondent as the rightful owner of Lot

No. 676, it did not so declare with respect to Lot No. 674, as Matilde’s last will and

testament had not yet been probated. Thus the Court of Appeals disposed:

WHEREFORE, finding the instant petition worthy of merit, the

same is hereby GRANTED and the Decision of

the Regional Trial Court of Roxas City, Branch 15, dated 20 September

1996, in Civil Case No. V-6686 for declaration of ownership, recovery

of ownership and possession, and damages is REVERSED and SET

ASIDE.

A new one is entered in its stead declaring defendant-appellant as

the lawful owner of Lot [No.] 676 of the Pilar

Cadastre. Accordingly, plaintiffs-appellees are directed to return the

possession of the said lot to the defendant-appellant.

Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to

defendant-appellant as attorney’s fees and litigation expenses.

Costs against plaintiffs-appellees.

SO ORDERED.[22] (Emphasis in the original; underscoring

supplied)

Their Motion for Reconsideration[23]

having been denied,[24]

petitioners filed

the present Petition for Review,[25]

contending that the Court of Appeals erred

I

X X X WHEN IT REVERSED THE DECISION OF THE COURT

BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED

OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS’

MOTHER IS IN FACT A DONATION MORTIS CAUSA.

II

X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL

OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A

DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO

MORE RIGHT TO SELL THE SAME.

III

X X X WHEN IT FAILED TO DECLARE PETITIONERS THE

RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED

WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED

OWNER THEREOF.

IV

X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF

EXECUTION PENDING APPEAL IS IN VIOLATION OF

PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF

COURT (AND ORDERING PETITIONERS TO RETURN

POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING

PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF

SUIT.[26]

As did the appellate court, the Court finds the donation to petitioners’ mother

one of mortis causa, it having the following characteristics:

(1) It conveys no title or ownership to the transferee before the death

of the transferor; or what amounts to the same thing, that the

transferor should retain the ownership (full or naked) and control of

the property while alive;

(2) That before the death of the transferor, 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.[27] (Emphasis and underscoring supplied)

The phrase in the earlier-quoted Deed of Donation “to become effective upon

the death of the DONOR” admits of no other interpretation than to mean that

Matilde did not intend to transfer the ownership of the six lots to petitioners’

mother during her (Matilde’s) lifetime.[28]

The statement in the Deed of Donation reading “anytime during the

lifetime of the DONOR or anyone of them who should survive, they could use,

encumber or even dispose of any or even all the parcels of land herein

donated”[29]

means that Matilde retained ownership of the lots and reserved in her

the right to dispose them. For the right to dispose of a thing without other

limitations than those established by law is an attribute of ownership.[30]

The phrase

in the Deed of Donation “or anyone of them who should survive” is of course out of

sync. For the Deed of Donation clearly stated that it would take effect upon the

death of the donor, hence, said phrase could only have referred to the donor

Matilde. Petitioners themselves concede that such phrase does not refer to the

donee, thus: x x x [I]t is well to point out that the last provision (sentence) in

the disputed paragraph should only refer to Matilde Aluad, the donor,

because she was the only surviving spouse at the time the donation was

executed on 14 November 1981, as her husband – Crispin Aluad [–] had

long been dead as early as 1975.[31]

The trial court, in holding that the donation was inter vivos, reasoned:

x x x The donation in question is subject to a resolutory term or

period when the donor provides in the aforequoted provisions, “but in

the event that the DONEE should die before the DONOR, the present

donation shall be deemed rescinded and [of] no further force and

effect”. When the donor provides that should the “DONEE” xxx die

before the DONOR, the present donation shall be deemed rescinded

and [of] no further force and effect” the logical construction thereof is

that after the execution of the subject donation, the same became

effective immediately and shall be ”deemed rescinded and [of] no

further force and effect” upon the arrival of a resolutory term or

period, i.e., the death of the donee which shall occur before that of the

donor. Understandably, the arrival of this resolutory term or period

cannot rescind and render of no further force and effect a donation

which has never become effective, because, certainly what donation is

there to be rescinded and rendered of no further force and effect upon

the arrival of said resolutory term or period if there was no donation

which was already effective at the time when the donee

died?[32] (Underscoring supplied)

A similar ratio in a case had been brushed aside by this Court, however,

thus:

x x x [P]etitioners contend that the stipulation on rescission in

case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory

condition that confirms the nature of the donation as inter vivos.

Petitioners’ arguments are bereft of merit.[33]

x x x x

x x x The herein subject deeds expressly provide that the donation

shall be rescinded in case [donees] the petitioners predecease [the donor]

Conchita Cabatingan. As stated in Reyes v. Mosqueda, 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 to the donee or independently of,

and not by reason of her death, she would not have expressed such

proviso in the subject deeds.[34] (Underscoring supplied)

As the Court of Appeals observed, “x x x [t]hat the donation is mortis

causa is fortified by Matilde’s acts of possession as she continued to pay the taxes

for the said properties which remained under her name; appropriated the produce;

and applied for free patents for which OCTs were issued under her name.”[35]

The donation being then mortis causa, the formalities of a will should have

been observed[36]

but they were not, as it was witnessed by only two, not three or

more witnesses following Article 805 of the Civil Code.[37]

Further, the witnesses did not even sign the attestation clause[38]

the

execution of which clause is a requirement separate from the subscription of the

will and the affixing of signatures on the left-hand margins of the pages of the

will. So the Court has emphasized:

x x x 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[s] 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.

x x x It is the witnesses, and not the testator, who are

required under Article 805 to state the number of pages 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.[39] (Emphasis and

underscoring supplied)

Furthermore, the witnesses did not acknowledge the will before the notary

public,[40]

which is not in accordance with the requirement of Article 806 of the

Civil Code that every will must be acknowledged before a notary public by the

testator and the witnesses.

More. The requirement that all the pages of the will must be numbered

correlatively in letters placed on the upper part of each page was not also

followed.[41]

The Deed of Donation which is, as already discussed, one of mortis

causa, not having followed the formalities of a will, it is void and transmitted no

right to petitioners’ mother. But even assuming arguendo that the formalities were

observed, since it was not probated, no right to Lot Nos. 674 and 676 was

transmitted to Maria.[42]

Matilde thus validly disposed of Lot No. 674 to

respondent by her last will and testament, subject of course to the qualification that

her (Matilde’s) will must be probated. With respect to Lot No. 676, the same had,

as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.

Petitioners nevertheless argue that assuming that the donation of Lot No.

674 in favor of their mother is indeed mortis causa, hence, Matilde could devise it

to respondent, the lot should nevertheless have been awarded to them because they

had acquired it by acquisitive prescription, they having been in continuous,

uninterrupted, adverse, open, and public possession of it in good faith and in the

concept of an owner since 1978.[43]

Petitioners failed to raise the issue of acquisitive prescription before the

lower courts, however, they having laid their claim on the basis of inheritance from

their mother. As a general rule, points of law, theories, and issues not brought to

the attention of the trial court cannot be raised for the first time on appeal.[44]

For a

contrary rule would be unfair to the adverse party who would have no opportunity

to present further evidence material to the new theory, which it could have done

had it been aware of it at the time of the hearing before the trial court.[45]

WHEREFORE, the petition is DENIED.