Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-4067 November 29, 1951In 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 Galavs.Gonzales and Ona, 53 Phil., 104; Dolarvs.Diancin, 55 Phil., 479; Payadvs.Tolentino, 62 Phil., 848; Neyravs.Neyra, 76 Phil., 296 and Lopezvs.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 PhilippinesSUPREME COURTManilaEN BANCG.R. No. 42258 September 5, 1936In 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; and5. 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; Banalvs.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 ofChung 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.Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ.,concur.

Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. 1641 January 19, 1906GERMAN JABONETA,plaintiff-appellant,vs.RICARDO GUSTILO, ET AL.,defendants-appellees.Ledesma, Sumulong and Quintos for appellant.Del-Pan, Ortigas and Fisher for appellees.CARSON,J.:In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the provisions of section 618 of the Code of Civil Procedure.The following is a copy of the evidence which appears of record on this particular point, being a part of the testimony of the said Isabeo Jena:Q. 1641 Who first signed the will?A. 1641 I signed it first, and afterwards Aniceto and the others.Q. 1641 Who were those others to whom you have just referred?A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en actitud de firmar). I believe he signed, because he was at the table. . . .Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will.A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in his hand, in position ready to sign. I believe he signed.Q. 1641 Why do you believe Julio Javellana signed?A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not actually see him sign.Q. 1641 Explain this contradictory statement.A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near the door I happened to turn my face and I saw that he had his hand with the pen resting on the will, moving it as if for the purpose of signing.Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing, or whether he was signingA. I believe he was signing.The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the parties to the proceedings, but the court, nevertheless, found the following facts:On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the document in question, which has been presented for probate as his will:Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said document as his will. They were all together, and were in the room where Jaboneta was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his presence and in the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in the presence of the testator, and in the presence of the other two persons who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena.We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together with the testimony of the remaining witnesses which shows that Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of executing the testament, and were together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so, therefore we are of opinion that the document was in fact signed before he finally left the room.The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so; and there are many cases which lay down the rule that the true test of vision is not whether the testator actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the time of the subscription. (Spoonemorevs. Cables, 66 Mo., 579.)The principles on which these cases rest and the tests of presence as between the testator and the witnesses are equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on the ground stated in the ruling appealed from.We are of opinion from the evidence of record that the instrument propounded in these proceedings was satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be admitted to probate.The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the record will be returned to the court form whence it came, where the proper orders will be entered in conformance herewith. So ordered.Arellano, C.J., Torres, Mapa, and Johnson, JJ.,concur.

Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-5971 February 27, 1911BEATRIZ 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 ofJaboneta 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 otherat 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 andwithout 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 PhilippinesSUPREME COURTManilaFIRST DIVISIONG.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA,petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent.Erasmo M. Diola counsel for petition.Hon. Avelino S. Rosal in his own behalf.GUTIERREZ, JR.J.:This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate.Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion,ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.Meanwhile, the petitioner filed a motion for the appointment of special administrator.Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filedex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.The petitioner decided to file the present petition.For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses signat the endof the will and in the presence of the testatrix and of one another?Article 805 of the Civil Code provides:Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be interpreted to them.The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place orat the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature.We find the petition meritorious.Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.It must be noted that the law uses the termsattestedandsubscribedAttestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification.The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission,p. 103).Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".InSingson v. Florentino, et al.(92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coquevs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarriavs. Sarmiento, 66 Phil. 611). Theratio decidendiof these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.Icasiano v. Icasiano(11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs.SO ORDERED.Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.Teehankee, J, is on leave.

Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-18979 June 30, 1964IN 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.1wph1.tOn 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 (seeIn reButalid, 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 inSideco 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 inVda. 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 PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 93980 June 27, 1994CLEMENTE CALDE,petitioner,vs.THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED,respondents.Nestor P. Mondok for petitioner.Lazaro Padong for private respondents.PUNO,J.:This is a petition for review bycertiorariof the Decision, dated March 27, 1990, of the Court of appeals1in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976.The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent. They were also signed by three (3) attesting witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of Bontoc, Mt. Province, Br. 36.2He died during the pendency of the proceedings, and was duly substituted by petitioner. Private respondents, relatives of decedent, opposed the Petitioner filed by Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect that decedent did not know; that decedent was mentally incapacitated to execute the two documents because of her advanced age, illness and deafness; that decedents thumbmarks were procured through fraud and undue influence; and that the codicil was not executed in accordance with law.On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedents will and its codicil. The decision was appealed to and reversed by the respondent Court of Appeals. It held:. . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code but for one crucial factor of discrepancy in the color of ink when the instrumental witnesses affixed their respective signatures. When subjected to cross-examination, Codcodio Nacnas as witness testified as follows:Q And all of you signed on the same table?A Yes, sir.Q And when you were all signing this Exhibit "B" and "B-1", Exhibit "B" and "B-1" which is the testament was passed around all of you so that each of you will sign consecutively?A Yes, sir.Q Who was the first to sign?A Calibia Lingdan Bulanglang.Q After Calibia Lingdan Bulanglang was made to sign I withdraw the question. How did Calibia Lingdan Bulanglang sign the last will and testament?A She asked Judge Tolete the place where she will affix her thumbmark so Judge Tolete directed her hand or her thumb to her name.Q After she signed, who was the second to sign allegedly all of you there present?A Jose Becyagen.Q With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?A Ballpen.Q And after Jose Becyagen signed his name with the ballpen, who was the next to sign?A Me, sir.Q And Jose Becyagen passed you the paper and the ballpen, Exhibit "B" and "B-1" plus the ballpen which used to sign so that you could sign your name, is that correct?A Yes, sir.Q And then after you signed, who was the next to sign the document, Exhibit "B" and "B-1"?A Hilario Coto-ong.Q So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1" and the ballpen so that he could sign his name as witness to the document, is it not?A Yes, sir.Q And that is the truth and you swear that to be the truth before the Honorable Court?ATTY. DALOG:He already testified under oath, Your Honor.COURT:Witness may answerA Yes, sir.For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the codicil that:Q When you signed Exhibit "D" and "D-1", did you all sign with the same ballpen?A One.Such admissions from instrumental witnesses are indeed significant since they point to no other conclusion than that the documents were not signed by them in their presence but on different occasions since the same ballpen used by them supposedly in succession could not have produced a different color from blue to black and from black to blue. In fact, the attestation clause followed the same pattern. The absurd sequence was repeated when they signed the codicil, for which reason, We have no other alternative but to disallow the Last Will and Codicil. Verily, if the witnesses and testatrix used the same ballpen, then their signatures would have been in only one color, not in various ones as shown in the documents. Moreover, the signatures, in different colors as they are, appear to be of different broadness, some being finer than the others, indicating that, contrary to what the testamentary witnesses declared on the witness stand, not only one ballpen was used, and, therefore, showing that the documents were not signed by the testatrix and instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46. Citations omitted.)Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was denied by the respondent court in its Order, dated May 24, 1990.Thus, this appeal by petitioner who now puts in issue the correctness of the respondent courts conclusion that both decedents will and codicil were not subscribed by the witnesses in the presence of the testator and of one another, contrary to the requirements of Article 805 of the Civil Code. He contends that:1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG.The petition must fail.The question in the case at bench is one of fact: whether or not, based on the evidence submitted, respondent appellate court erred in concluding that both decedents Last Will and Testament, and its Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule, factual findings of the Court of Appeals are considered final and conclusive, and cannot be reviewed on appeal to this court. In the present instance, however, there is reason to make an exception to that rule, since the finding of the respondent court is contrary to that of the trial court,viz.:. . . (Private respondents) pointed out however, that the assertions of petitioners witnesses are rife with contradictions, particularly the fact that the latters signatures on the documents in issue appear to have been written in ballpens of different colors contrary to the statements of said witnesses that all of them signed with only one ballpen. The implication is that the subscribing witnesses to the Will and Codicil, and the testatrix did not simultaneously sign each of the documents in one sitting but did it piecemeal a violation of Art. 805 of the Code. This conclusion of the (private respondents) is purely circumstantial. From this particular set of facts, numerous inferences without limits can be drawn depending on which side of the fence one is on. For instance, considering the time interval that elapsed between the making of the Will and Codicil, and up to the filing of the petition for probate, the possibility is not remote that one or two of the attesting witnesses may have forgotten certain details that transpired when they attested the documents in question . . . (Rollo, pp. 36-37.)A review of the facts and circumstances upon which respondent Court of Appeals based its impugned finding, however, fails to convince us that the testamentary documents in question were subscribed and attested by the instrumental witnesses during a single occasion.As sharply noted by respondent appellate court, the signatures of some attesting witnesses in decedents will and its codicil were written in blue ink, while the others were in black. This discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens were used by the signatories on the two documents. In fact, two (2) of petitioners witnesses even testified that only one (1) ballpen was used in signing the two testamentary documents.It is accepted that there are three sources from which a tribunal may properly acquire knowledge for making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or autoptic proference. Wigmore explains these sources as follows:If, for example, it is desired to ascertain whether the accused has lost his right hand and wears an iron hook in place of it, one source of belief on the subject would be the testimony of a witness who had seen the arm; in believing this testimonial evidence, there is an inference from the human assertion to the fact asserted. A second source of belief would be the mark left on some substance grasped or carried by the accused; in believing this circumstantial evidence, there is an inference from the circumstance to the thing producing it. A third source of belief remains, namely, the inspection by the tribunal of the accuseds arm. This source differs from the other two in omitting any step of conscious inference or reasoning, and in proceeding by direct self-perception, or autopsy.It is unnecessary, for present purposes, to ask whether this is not, after all, a third source of inference, i.e., an inference from the impressions or perceptions of the tribunal to the objective existence of the thing perceived. The law does not need and does not attempt to consider theories of psychology as to the subjectivity of knowledge or the mediateness of perception. It assumes the objectivity of external nature; and, for the purposes of judicial investigation, a thing perceived by the tribunal as existing does exist.There are indeed genuine cases of inference by the tribunal from things perceived to other things unperceived as, for example, from a persons size, complexion, and features, to his age; these cases of a real use of inference can be later more fully distinguished . . . But we are here concerned with nothing more than matters directly perceived for example, that a person is of small height or is of dark complexion; as to such matters, the perception by the tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the tribunals self-perception, or autopsy, of the thing itself.From the point of view of the litigant party furnishing this source of belief, it may be termedAutoptic Proference.3(Citations omitted.)In the case at bench, the autoptic proference contradicts the testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white or more accurately, in black and blue that more than one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioners claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary documents were subscribed and attested to, starting from decedents thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Toletes testimony is there any kind of explanation for the different-colored signatures on the testaments.IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMEDIN TOTO. Costs against petitioner.SO ORDERED.Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-5826 April 29, 1953Testate 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 PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 103554 May 28, 1993TEODORO 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 oncertiorariis 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.1It 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.2Four 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.3On 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, 1981.4Thereafter, 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.5Benoni 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.6In 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.7On 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.8On 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.9Undaunted 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 decision10affirming 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."11Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992,12hence 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.13Under the Civil Code, there are two kinds of wills which a testator may execute.14the 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.15hence 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.16The 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.17However, 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.18The 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.19It 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.20It 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.21Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will,22should state (1)the number of the pages usedupon which the will is written; (2) that thetestator signed, or expressly caused another to sign, the will and every page thereofin the presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of the willand all its pages,andthatsaidwitnesses also signed the willand every page thereofin 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;23whereas 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.24Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause.25The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof.26As it appertains only to the witnesses and not to the testator, it need be signed only by them.27Where 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.28In 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. . . .292. 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.30Since it is the proverbial bone of contention, we reproduce it again for facility of refe