succession cases- wills

7/30/2019 Succession Cases- WILLS

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EN BANC

G.R. No. L-3362 March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABELHERREROS VDA. DE GIL, administratrix-appellee,

vs. PILAR GIL VDA. DE MURCIANO,oppositor-appellant.

JUGO,J.: chanrobles virtual law library

The Court of First Instance of Manila admitted to probatethe alleged will and testament of the deceased Carlos Gil.The oppositor Pilar Gil Vda. de Murciano appealed to thisCourt, raising only question of law. Her counsel assigns thetwo following alleged errors:

Primer Error. - El Juzgado inferior erro al dejar de declararque el alegado testamento de Carlos Gil no ha sido otogar

de acuerdo con laley.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

Segundo Error. - Erro finalmente a legalizar el referido

testamento.

The alleged will read as follows:

Primera Pagina (1) chanrobles virtual law library

EN EL NOMBRE DE DIOS, AMEN chanrobles virtual lawlibrary

Yo, Carlos Gil, de 66 aos de edad, residente de Porac,Pampanga, I. F., hallandome sano y en pleno goce de misfacultades intelectuales, libre y expontaneamente, sinviolencia, coaccion, dolo o influencia ilegal de persona

extraa, otorgo y ordeno este mi testamento y ultimavoluntad en castellano, idioma que poseo y entiendo, de la

manera siguiente: chanrobles virtual law library

1. Declaro que durante mi matrimonio con mi esposa lahoy Isabel Herreros no tuvimos hijos; chanrobles virtuallaw library

2. Declaro que tengo propiedades situadas en Manila y en

la Provincia de Pampanga; chanrobles virtual law library

3. Doy y adjudico a mi querida esposa Isabel Herretos

todos mis bienes ya que muebles e inmuebles situados enManila y en Pampanga, bajo la condicion de que cuandoesta muera y si hayan bienes remanentes heredadas porella de mi, que dichos bienes remanentes se adjudicaran a

Don Carlos Worrel.chanroblesvirtualawlibrary chanroblesvirtual law library

4. Nombro como albacea de mis bienes despues de mi

fallecimiento al Dr. Galicano Coronel a quien tengoabsoluta confianza, con relevacion de fianza; chanroblesvirtual law library

En testimonio de todo lo cual, firmo este mi testamento y

en el margen izquierdo de cada una de sus dos paginas,utiles con la clausula de atestiguamiento en presencia de

los testigos, quienes a su vez firmaron cada una de dichas


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paginas y la clausula de atestiguamiento en mi presenciacada uno de ellos con la de los demas, hoy en Porac,Pampanga, I. F., el dia 27 de Mayo de mil novecientostreinta y nueve.

CARLOS GIL

Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad,certificamos: que el testamento que precede este escritoen la lengua castellana que conoce la testadora,compuesto de dos paginas utiles con la clausula de

atestiguamiento paginadas correlativamente en letras ynumeros en la parte superior de la casilla, asi como todaslas hojas del mismo, en nuestra presencia y que cada unode nosotros hemos atestiguado y firmado dicho documentoy todas las hojas del mismo en presencia del testador y enla de cada uno de nosotros.

(Fdo.) ALFREDO T.

RIVERA chanrobles virtual law library

(Fdo.) RAMONMENDIOLA chanrobles virtual lawlibrary

(Fdo.) MARIANO OMAA

Regarding the correctness and accuracy of the above-copied alleged will, the court below said:

. . . The only copy available is a printed form contained inthe record appeal in case G.R. No. L-254, entitled "TestateEstate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner

and appellant vs. Roberto Toledo y Gil, oppositor andappellee." Both parties are agreed that this is a true and

correct copy of the will. (P. 10, Record on Appeal).

The appeal being only on questions of law the abovefinding of the court below cannot be disputed. Theconclusions of law reached by said court are based on it.

Moreover, the finding is correctly based on the evidence ofrecord. The parties agreed that said copy is true and

correct. If it were otherwise, they would not have so

agreed, considering that the defect is of an essentialcharacter and is fatal to the validity of the attestationclause.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

It will be noted that the attestation clause above quoted

does not state that the alleged testor signed the will. Itdeclares only that it was signed by the witnesses. This is afatal defect, for the precise purpose of the attestationclause is to certify that the testator signed the will, thisbeing the most essential element of the clause. Without itthere is no attestation at all. It is said that the court may

correct a mere clerical error. This is too much of a clericalerror for it effects the very essence of the clause. Alleged

errors may be overlooked or correct only in matters ofform which do not affect the substance of the


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2645.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

In the case ofGumban vs. Gorecho (50 Phil., 30, 31), thecourt had the following to say:

1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS618 AND 634 OF THE CODE OF CIVIL PROCEDURE

CONSTRUED. - The right to dispose of the property by willis governed entirely by statute. The law is here found insection 618 of the Code of Civil Procedure, as amended.The law not alone carefully makes use of the imperative,but cautiously goes further and makes use of the negative,

to enforce legislativeintention.chanroblesvirtualawlibrary chanrobles virtual law

library

2. ID.; ID.; ATTESTATION. - The Philippine authoritiesrelating to the attestation clause to wills reviewed. Thecases ofSao vs. Quintana([1925], 48 Phil., 506), andNayve vs. Mojal and Aguilar ([1924], 47 Phil., 152),particularly compared. The decision in In re Will of

Quintana, supra, adopted and reaffirmed. The decision inNayve vs. Mojal and Aguilar, supra,modified.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

3. ID.; ID.; ID.; ID. - The portion of section 618 of theCode of Civil Procedure, as amended, which provides that"The attestation clause shall state the number of sheets orpages 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 hisexpress direction, in the presence of three witnesses, andthe latter witnessed and signed the will and all pagesthereof in the presence of the testator and of each other"

applied and enforced.chanroblesvirtualawlibrary chanroblesvirtual law library

4. ID.; ID.; ID.; ID. - An attestation clause which does not

recite that the witnesses signed the will and each andevery page thereof on the left margin in the presence ofthe testator is defective, and such a defect annuls the will.(Sano vs. Quintana, supra.)

In the subsequent case ofQuinto vs. Morata (54 Phil., 481,482), Judge Manuel V. Moran, now Chief Justice of the

Supreme Court, in his decision made the following

pronouncement:

. . . En la clausula de atestiguamiento del testamento encuestion, se hace constar que los testadores firmaron el

testamento enpresencia de los tres testigos instrumentalesy que estos firmaron el testamento los unos en presencia

de los otros, pero no se hace constar que dichos testigosfirmaron el testamento en presencia de los testadores, nique estos y aquellos firmaron todas y cada una de laspaginas del testamento los primeros en presencia de lossegundos y vice-versa.chanroblesvirtualawlibrary chanrobles virtual law

library

En su virtud, se deniega la solicitud en la que se pide la

legalizacion del alegado testamento Exhibit A de Gregorio


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Pueblo y Carmen Quinto, y se declara que Gregorio Pueblomurio intestado.

The Supreme Court fully affirmed the decision, laying downthe following doctrine:

1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLYDEFECTS OF. - The attestation clause must be made in

strict conformity with the requirements of section 618 ofAct No. 190, as amended. Where said clause fails to showon its face a full compliance with those requirements, thedefect constitutes sufficient ground for the disallowance ofthe will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs.

Gorecho, 50 Phil., 30). Evidence aliunde should not beadmitted to establish facts not appearing on the

attestation clause, and where said evidence has been

admitted it should not be given the effect intended. (UyCoque vs. Navas L. Sioca, 43 Phil., 405,409.).chanroblesvirtualawlibrary chanrobles virtual lawlibrary

2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT

NO. 190, AS AMENDED. - Section 618 of Act No. 190, asamended, should be given a strict interpretation in order togive effect to the intention of the Legislature. Statutesprescribing formalities to be observed in the execution ofwills are very strictly construed. Courts cannot supply thedefensive execution of will. (40 Cyc., p. 1079; Uy Coque

vs. Navas L. Sioca, supra.)

It is true that in subsequent decisions, the court has

somewhat relaxed the doctrine of the Gumban vs.

Gorcho case, supra, but not to the extent of validating anattestation clause similar to that involvedherein.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

In the case ofAldaba vs. Roque (43 Phil., 378), the

testatrix signed the attestation clause which was complete,and it was also signed by the two attesting witnesses. For

this reason, the court said:

In reality, it appears that it is the testatrix who makes thedeclaration about the points contained in the abovedescribed paragraph; however, as the witnesses, together

with the testatrix, have signed the said declaration, we areof the opinion and so hold that the words above quoted of

the testament constitute a sufficient compliance with the

requirements of section 1 of Act No. 2645 which providesthat: . . . (p. 381, supra.)

The attestation clause involved herein is very

different.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

In the case ofDischoso de Ticson vs. De Gorotiza (57 Phil.,

437), it was held that:

An attestation clause to a will, copied from a form book

and reading: "We, the undersigned attesting witnesses,whose residences are stated opposite our respective

names, do hereby certify that the testatrix, whose name issigned hereinabove, has publish unto us the foregoing will

consisting of two pages as her Last Will and Testament,


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and has signed the same in our presence, and in witnesswhereof we have each signed the same and each pagethereof in the presence of said testatrix and in thepresence of each other," held not to be fatally defective

and to conform to the law.

This very different from the attestation clause in the caseat bar.chanroblesvirtualawlibrary chanrobles virtual law

library

In the case ofGrey vs. Fabie * (40 Off. Gaz., 1stSupplement, 196, No. 3, May 23, 1939), the will wasobjected to on the ground that, although the attestation

clause stated that "each of the pages of which the said willis composed" was signed by the testatrix at the left margin

and at the foot of the fifth page, it did not state that thesignature was made in the presence of the witnesses. Itwas held, however, that said deficiency was cured by thephrase "as well as by each of us in the presence of thetestatrix." The words "as well as" indicate that the testatrixsigned also in the presence of the witnesses, for the

phrase "as well as" in this case is equivalent to "also." Thelanguage is clear and, unlike the attestation clause in the

present case, does not necessitate any correction. In thebody of the will the testatrix stated that she signed in thepresence of each and all of the three witnesses. This wasconsidered as a corroboration, but it wasunnecessary.chanroblesvirtualawlibrary chanrobles virtual

law library

In the case ofLeynez vs. Leynez(40 Off. Gaz., 3rdSupplement, 51, 52, No. 7, October 18, 1939; 68 Phil.,745), the attestation clause reads as follows:

Suscrito y declarado por el testador Valerio Leynez, comosu ultima voluntad y testamento en presencia de todos y

cada uno de nosotros, y a ruego de dicho testador,firmamos el presente cada uno en presencia de los otros, o

de los demas y de la del mismo testsador, Valerio Leynez.El testamento consta de dos (2) paginas solamente.

The objection was that the attestation clause did not statethat the testator and the witnesses signed each and every

page of the will. This fact , however, appears in the willitself. It is clear, therefore, that in case of the will complied

with all the requisites for its due execution. In the instantcase, essential words wereomitted.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

In the case ofAlcala vs. De Villa 1 (40 Off. Gaz., 14thSupplement, 131, 134-135, No. 23, April 18, 1939), the

attestation clause reads as follows:

Hacemos constar que en la fecha y pueblo arribamencionadios otorgo el Sr. Emiliano Alcala su ultimavoluntad o testamentao compuesto de cuatro paginas

incluida ya esta clasula de atestiguamiento. Queestabamos presentes en el momento de leer y ratificar elque el testamento arriba mencionado es su ultimavoluntad o testamento compuesto de cuatro paginasen

papel de maquinilla. Que igualmente estabamos presentes


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cuando el firmo este documento al pie del mismo y en elmargen izquierdo de cada pagina del testador tambien enpresencia suya y de cada uno de nosotros en cada paginay en el margen izquierdo de esta escritura o testamento.

En su testimonio firmamos abajo en prsencia del testadory de cada uno de nosotros.

The above attestation clause is substantially perfect. The

only clerical error is that it says "testador" instead of"testamento" in the phrase "cada pagina del testador." Theword "tambien" renders unnecessary the use of the verb"firmamos." chanrobles virtual law library

In the case ofMendoza vs. Pilapil2 (40 Off. Gaz., 1855,No. 9, June 27, 1941), the attestation clause did not state

the number of pages of the will. However, it was held thatthis deficiency was cured by the will itself, which statedthat it consisted of three pages and in fact it had threepages.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

In the case ofRallos vs. Rallos (44 Off. Gaz., 4938, 4940,

No. 12, October 23, 1947), decided by the Court ofAppeals, the attestation clause (translated in Spanish)reads as follows:

Nosotros, los testigos, certificamos que este que hemos

firmado es el testamento y ultima voluntad, que se haredactado en cuatro paginas, de Numeriano Rallos, quiendespues de leer y de leer y de leerle el mencionadotestamento, y despues de que ella dio su conformidad,

firmo y marco con su dedo pulgar derecho en nuestra

presencia y en presencia de cada uno de nosotros, queasimismo cada uno de nosotros, los testigos, firmamosenpresencia de la testadora y en presencia de cada uno denosotros.

It will be noticed that the only thing omitted is the

statement as to the signing of the testatrix and thewitnesses of each and every page of the will, but the

omission is cured by the fact that their signatures appearon every page. This attestation clause is different fromthat involved in the presentcase.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

There is no reason why wills should not be executed by

complying substantially with the clear requisites of the law,leaving it to the courts to supply essential elements. Theright to dispose of property by will is not natural butstatutory, and statutory requirements should be satisfied.

The right to make a testamentary disposition of one'sproperty is purely of statutory creation, and is available

only upon the compliance with the requirements of thestatute. The formalities which the Legislature hasprescribed for the execution of a will are essential to itsvalidity, and cannot be disregarded. The mode soprescribed is the measure for the exercise of the right, andthe heir can be deprived of his inheritance only by a

compliance with this mode. For the purpose of determiningwhether a will has been properly executed, the intention of

the testator in executing it is entitled to no consideration.For that purpose only intention of the Legislature, as


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the matter at least a passingnotice.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

It may be stated as background that the original of the willwas filed in the Court of First Instance of Manila in 1943;

that in 1945, before the will came up for probate, it wasdestroyed by fire or looters; that in the probate proceeding

after liberation, the parties submitted an agreed statementof facts in which the will was reproduced as copiedin therecord on appeal in another case docketed in this court onappeal as G.R. No. L-254 and decided on April 30, 1948. Itfurther appears from the record of that case and from the

decision of this court that the controversy there concernedthe right of a nephew of the testator to impugn the will, itbeing alleged that he was not a legal heir and had nointerest in theprobate.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

As transcribed in the majority decision, it will be seen that

the attestation clause is truncated and meaningless. Thelast of the compound sentence in incomplete, lacking an

adjective phrase. Counsel for appellee contends that thephrase "ha sido firmado por el testador" or equivalentexpression between the words "del mismo" and the words"en nuestra presencia" should be inserted if the sentenceis to be complete and have sense. The attestation clause

with the inclusion of the omitted phrase, which we italicizeshould read thus:

Nosotros, los que suscribimos, todos mayores de edad,certificamos que el testamento que precede escrito en lalengua castellana que conoce la testador, compuesto delas paginadas utiles con la clausula de atestiguamiento

paginadas correlativamente en letras y numeros en laparte superior de la casilla, asi como todos las hojas del

mismo (Ha sido firmado por el testador) en nuestrapresencia y que cada de nosotros hemos atestiguado yfirmado dicho documento y todas las hojas del mismopresencia del testador y en la de cada uno de nosotros.

It seems obvious that the missing phrase wasinadvertently left out. The probabilities of error in the copy

are enhanced by the fact that the form of the will was notin controversy. The form of the will being immaterial, it iseasily conceivable that little or on care was employed inthe copying thereof in the pleading or record on appealabove mentioned. The absence of the signature of thetestator on the first page of the copy is an additional proof

that little or on pain was taken to insure accuracy in thetranscription. The appearance of "la testadora" in the copy

instead of "el testador" isanother.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

Quite aside from all this, the testator was presumed toknow the law, as the decision says. Certainly, AttorneyMariano Omaa, who drafted the whole instrument andsigned it as an attesting witness, knew the law and, by thecontext of the whole instrument, has shown familiaritywith the rules of grammar and ability to express his idea


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will, the witnesses limiting their role to signing thedocument below the testator's signature. Here, at most,the testator took away from the witness only a small partof their assigned task, leaving them to perform the

rest.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

Referring to "the lack of attestation clause required by

law," this court, in a unanimous decision in banc, throughMr. Justice Villamor said (syllabus): "When the attestationclause is signed by the witnesses to the instrumentsbesides the testator, such attestation clause is valid andconstitutes a substantial compliance with the provisions of

section 1 of Act No. 2645, even though the facts recited insaid attestation appear to have been make by the testatorhimself." chanrobles virtual law library

That was good doctrine when it was announced. We thinkit is good law still. That ruling should set the present caseat rest unless the court wants to discard it. On thepossibility that this is the intention, we will dwell on the

subject further.chanroblesvirtualawlibrary chanroblesvirtual law library

This Court noted in Dichoso de Ticson vs. De Gorostiza,(1922), 57 Phil., 437, "that there have been noticeable inthe Philippines two divergent tendencies in the law of wills

- the one being planted on strict construction and the otheron liberal construction. A late example of the former viewsmay be found in the decision in Rodriguez vs.

Alcala (1930), 55 Phil., 150, sanctioning a literalenforcement of the law. The basic case in the other

direction, predicated on reason, isAbangan vs.Abangan (1919), 40 Phil., 476, oft-cited approvingly inlater decisions." In the Abangan case, unanimous court,speaking through Mr. Justice Avancea, later ChiefJustice, observed: "The object of the solemnitiessurrounding the execution of wills is to close the door

against bad faith and fraud, to avoid substitution of willsand testaments and to guaranty their truth andauthenticity. Therefore the laws on this subject should beinterpreted in such a way as to attain these primodialends. But, on the other hand, also one must not lose sightof the fact that it is not the object of the law to restrain

and curtail the exercise of the right to make a will. Sowhen an interpretation already given assures such ends,

any other interpretation whatsoever, that adds nothing butdemands more requisites entirely unnecessary, uselessand frustrative of the testator's last will, must bedisregarded." chanrobles virtual law library

Subsequent decisions which followed and adopted theAbangan principle were numerous:Avera vs.

Garcia (1921), 42 Phil., 145;Aldaba vs. Roque(1922), 43Phil., 378; Unson vs. Abella (1922,) 43 Phil., 494; Pecsonvs. Coronel(1923), 45 Phil., 216; Fernandez vs. Vergel deDios (1924), 46 Phil., 922; Nayve vs. Mojal(1924), 47Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Reyvs. Cartegana (1931), 56 Phil., 282; Ticson vs.Gorostiza(1932), 57 Phil., 437; Testamentaria de M. Ozoa

(1933), 57 J. F., 1007; Sebastian vs. Paganiban(1934),59 Phil., 653; Rodriguez vs. Yap (1939)1, 40 Off. Gaz., 1stSuppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz.,1st Suppl. No. 3, p. 196; Leynez vs. Leynez(1939)3, 40


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date of its execution, the testator was already in the poor state ofhealth such that he could not have possibly executed the same.Petitioners likewise reiterated the issue as to the genuineness ofthe 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 wasof sound and disposing mind and that, contrary to the assertions ofthe oppositors, Mateo Caballero was in good health and was notunduly influenced in any way in the execution of his will. Labucaalso testified that he and the other witnesses attested and signedthe will in the presence of the testator and of each other. The othertwo attesting witnesses were not presented in the probate hearingas the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaringthe will in question as the last will and testament of the late MateoCaballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses ofthe oppositors cannot overcome the positivetestimonies of Atty. Filoteo Manigos and CiprianoLabuca who clearly told the Court that indeed MateoCaballero executed the Last Will and Testament nowmarked Exhibit "C" on December 5, 1978. Moreover,the fact that it was Mateo Caballero who initiated theprobate 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 indeedhis Last Will. At the start, counsel for the oppositorsmanifested that he would want the signature of MateoCaballero in Exhibit "C" examined by a handwritingexpert of the NBI but it would seem that despite their

avowal and intention for the examination of thissignature of Mateo Caballero in Exhibit "C", nothingcame out of it because they abandoned the idea andinstead presented Aurea Caballero and HelenCaballero 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 andthat it was executed in accordance with all therequisites of the law. 9

Undaunted by the said judgment of the probate court, petitionerselevated the case in the Court of Appeals in CA-G.R. CV No.19669. They asserted therein that the will in question is null andvoid for the reason that its attestation clause is fatally defectivesince it fails to specifically state that the instrumental witnesses tothe will witnessed the testator signing the will in their presence andthat they also signed the will and all the pages thereof in thepresence of the testator and of one another.

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

The question therefore is whether the attestationclause in question may be considered as havingsubstantialy complied with the requirements of Art.

805 of the Civil Code. What appears in the attestationclause which the oppositors claim to be defective is"we do certify that the testament was read by him andthe attestator, Mateo Caballero, has published untous the foregoing will consisting of THREE PAGES,including the acknowledgment, each page numbered


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Aguilar, supra, was not mentioned. In contrast, is thedecision in Nayve vs. Mojal and Aguilar, supra,wherein it was held that the attestation clause mustestate the fact that the testator and the witnessesreciprocally saw the signing of the will, for such an actcannot be proved by the mere exhibition of the will, ifit is not stated therein. It was also held that the fact

that the testator and the witnesses signed each andevery page of the will can be proved also by the mereexamination of the signatures appearing on thedocument itself, and the omission to state suchevident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previouscases; seldom do they admit inconsistency indoctrine. Yet here, unless aided impossible toreconcile the Mojal and Quintana decisions. They arefundamentally at variance. If we rely on one, weaffirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, threeoutstanding points may be mentioned. In the firstplace, the Mojal, decision was concurred in by onlyfour members of the court, less than a majority, withtwo strong dissenting opinions; the Quintana decisionwas concurred in by seven members of the court, aclear majority, with one formal dissent. In the secondplace, the Mojal decision was promulgated in

December, 1924, while the Quintana decision waspromulgated in December, 1925; the Quintanadecision was thus subsequent in point of time. And inthe third place, the Quintana decision is believedmore nearly to conform to the applicable provisions ofthe law.

The right to dispose of property by will is governedentirely by statute. The law of the case is here foundin section 61 of the Code of Civil Procedure asamended by Act No. 2645, and in section 634 of thesame Code, as unamended. It is in part provided insection 61, as amended that "No will. . . shall bevalid. . .unless . . .." It is further provided in the same

section that "The attestation shallstate the number ofsheets or pages used, upon which the will is written,and the fact that the testator signed the will and everypage thereof, or caused some other person to writehis name, under his express direction, in the presenceof three witnesses, and the latter witnessed andsigned the will and all pages thereof in the presenceof the testator and of each other." Codal section 634provides that "The will shallbe disallowed in either ofthe following case: 1. Ifnotexecuted and attestedasin this Act provided." The law not alone carefullymakes use of the imperative, but cautiously goesfurther and makes use of the negative, to enforcelegislative intention. It is not within the province of thecourts to disregard the legislative purpose soemphatically and clearly expressed.

We adopt and reaffirm the decision in the caseofSano vs. Quintana, supra, and, to the extentnecessary, modify the decision in the case ofNayvevs. Mojal and Aguilar, supra. (Emphases in the

original text).

But after the Gumban clarificatory pronouncement, there weredecisions of the Court that once more appeared to revive theseeming diversity of views that was earlier threshed out therein.The cases ofQuinto vs. Morata, 49Rodriguez vs.


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Nicasio Calde, the executor named in the will, filed a Petition for itsallowance before the RTC of Bontoc, Mt. Province, Br. 36. 2Hedied during the pendency of the proceedings, and was dulysubstituted by petitioner. Private respondents, relatives ofdecedent, opposed the Petitioner filed by Calde, on the followinggrounds: that the will and codicil were written in Ilocano, a dialectthat decedent did not know; that decedent was mentally

incapacitated to execute the two documents because of heradvanced age, illness and deafness; that decedents thumbmarkswere procured through fraud and undue influence; and that thecodicil 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 decisionwas appealed to and reversed by the respondent Court of Appeals.It held:

. . . (T)he will and codicil could pass the safeguardsunder Article 805 of the New Civil Code but for onecrucial factor of discrepancy in the color of ink whenthe instrumental witnesses affixed their respectivesignatures. When subjected to cross-examination,Codcodio Nacnas as witness testified as follows:

Q And all of you signed on the sametable?

A Yes, sir.

Q And when you were all signing thisExhibit "B" and "B-1", Exhibit "B" and "B-1" which is the testament was passedaround all of you so that each of you willsign 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 Bulanglangsign the last will and testament?

A She asked Judge Tolete the placewhere she will affix her thumbmark soJudge Tolete directed her hand or herthumb to her name.

Q After she signed, who was the secondto sign allegedly all of you therepresent?

A Jose Becyagen.

Q With what did Jose Becyagen sign thetestament, Exhibit "B" and "B-1"?

A Ballpen.

Q And after Jose Becyagen signed his

name with the ballpen, who was thenext to sign?

A Me, sir.


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Petitioner unsuccessfully moved for reconsideration of theimpugned Decision. His motion was denied by the respondent courtin its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue thecorrectness of the respondent courts conclusion that bothdecedents will and codicil were not subscribed by the witnesses in

the presence of the testator and of one another, contrary to therequirements of Article 805 of the Civil Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HASDECIDED A QUESTION OF SUBSTANCE IN A WAYNOT IN ACCORD WITH LAW OR WITH THE

APPLICABLE DECISION OF THE SUPREMECOURT BY CONCLUDING BASED ON PURESPECULATION OR SURMISES AND WITHOUTREGARD TO THE TESTIMONY OF JUDGE TOLETEWHICH IS AN EVIDENCE OF SUBSTANCE THATTHE WILL AND THE CODICIL OF THE LATECALIBIA LINGDAN BULANGLANG WERE SIGNEDBY HER AND BY HER INSTRUMENTALWITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HASDECIDED A QUESTION OF SUBSTANCE IN A WAYNOT IN ACCORD WITH LAW OR WITH THE

APPLICABLE DECISIONS OF THE SUPREMECOURT BY DISREGARDING THE PROBATIVE

VALUE OF THE ATTESTATION CLAUSES OF THELAST WILL AND TESTAMENT AND THE CODICILOF 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 erredin concluding that both decedents Last Will and Testament, and itsCodicil were subscribed by the instrumental witnesses on separateoccasions. As a general rule, factual findings of the Court of

Appeals are considered final and conclusive, and cannot bereviewed on appeal to this court. In the present instance, however,

there is reason to make an exception to that rule, since the findingof the respondent court is contrary to that of the trial court, viz.:

. . . (Private respondents) pointed out however, thatthe assertions of petitioners witnesses are rife withcontradictions, particularly the fact that the latterssignatures on the documents in issue appear to havebeen written in ballpens of different colors contrary tothe statements of said witnesses that all of themsigned with only one ballpen. The implication is thatthe subscribing witnesses to the Will and Codicil, andthe testatrix did not simultaneously sign each of thedocuments in one sitting but did it piecemeal aviolation of Art. 805 of the Code. This conclusion ofthe (private respondents) is purely circumstantial.From this particular set of facts, numerous inferenceswithout limits can be drawn depending on which sideof the fence one is on. For instance, considering thetime interval that elapsed between the making of theWill and Codicil, and up to the filing of the petition forprobate, the possibility is not remote that one or two

of the attesting witnesses may have forgotten certaindetails that transpired when they attested thedocuments in question . . . (Rollo, pp. 36-37.)

A review of the facts and circumstances upon which respondentCourt of Appeals based its impugned finding, however, fails to


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upon inspection by the respondent court, show in black and white or more accurately, in black and blue that more than one penwas used by the signatories thereto. Thus, it was not erroneous norbaseless for respondent court to disbelieve petitioners claim thatboth testamentary documents in question were subscribed to inaccordance with the provisions of Art. 805 of the Civil Code.

Neither did respondent court err when it did not accord great weightto the testimony of Judge Tomas A. Tolete. It is true that histestimony contains a narration of how the two testamentarydocuments were subscribed and attested to, starting fromdecedents thumbmarking thereof, to the alleged signing of theinstrumental witnesses thereto in consecutive order. Nonetheless,nowhere in Judge Toletes testimony is there any kind ofexplanation 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 andTestament, and the Codicil thereto, of the decedent Calibia LingdanBulanglang is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-3497 May 18, 1951

THE MATTER OF THE PROBATE OF THE LAST WILL ANDTESTAMENT OF JOSE VENZON. VALENTINACUEVAS, petitioner-appellee,vs.PILAR ACHACOSO, oppositor-appellant.

Juan R. Arbizo and Antonio Gonzales for petitioner-appellee.Mariano Trinidad and Luis J. Nepomuceno for oppositor-appellant.

BAUTISTA ANGELO, J .:

This is an appeal from an order of the Court of First Instance ofZambales admitting to probate the last will and testament of the lateJose Venzon.

On January 19, 1946, Jose Venzon died in Iba, Zambales, leavinga will. In said will the deceased instituted as his heirs, ValentinaCuevas, his widow and Rosario Asera Venzon, his daughter. Henamed therein his widow as executrix of the will. On February 1,1946, Valentina Cuevas filed a petition for the probate of said will.

On May 10, 1946, one Pilar Achacoso filed an alternative petitionfor the probate of a previous will executed by the deceased prayingtherein that, if the will submitted by the widow be rejected, the otherwill be admitted to probate in lieu thereof. In the previous will thereare other heirs instituted, among them petitioner Pilar Achacoso.

Pilar Achacoso objected to the probate of the second will executedby the deceased on October 10, 1945. After due hearing, the courtfound that the latter will was executed in accordance with law andordered that it be admitted to probate. Pilar Achacoso took the caseto the Court of Appeals, but the latter certified it to this Court on theground that it involves purely questions of law.


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The main error assigned refers to the alleged lack of attestationclause in the will under consideration, or to the fact that, if there issuch attestation clause, the same has not been signed by theinstrumental witnesses, but by the testator himself, and it is claimedthat this defect has the effect of invalidating the will.

The will in question, after reciting in separate paragraphs, and

under correlative numbers, the provisions of the will, winds up withthe following clause:

IN WITNESS WHEREOF, I sign this testament or last will inthe municipality of Iba, Zambales, Philippines, this 10th dayof October, 1945, in the presence of the three witnesses,namely Dr. Nestorio Trinidad, Don Baldomero Achacoso,and Mr. Proceso Cabal as instrumental witnesses to mysigning; this testament is written in three (3) sheets markedby letter "A", "B" and "C" consecutively on top of each sheetand upon my request and in my presence and also in thepresence of each of the aforesaid instrumental witnesses,they also signed this testament already reffered to.

I hereby manifest that every sheet of the aforesaidtestament, on the left-hand margin as well as the testamentitself have been signed by me as also each of the witnesseshas also signed in my presence and in the presence of eachother.

(Sgd.) JOSE VENZON

Witnesses:

(Sgd.) NESTORIO TRINIDAD(Sgd.) BALDOMERO L. ACHACOSO(Sgd.) PROCESO CABAL.

The clause above quoted is the attestation clause reffered to in thelaw which, in our opinion, substantially complies with itsrequirements. The only apparent anomaly we find is that it appears

to be an attestation made by the testator himself more than by theinstrumental witnesses. This apparent anomaly, as to affect thevalidity of the will, it appearing that right under the signature of thetestator, there appear the signatures of the three instrumentalwitnesses.

"Instrumental witness, as define by Escriche in his DiccionarioRazonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is onewho takes part in the execution of an instrument or writing" (Inre will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness,therefore, does not merely attest to the signature of the testator butalso to the proper execution of the will. The fact that the threeinstrumental witnesses have signed the will immediately under thesignature of the testator, shows that they have in fact attested notonly to the genuineness of his signature but also to the dueexecution of the will as embodied in the attestation clause.

The attestation clause in question bears close similarity with theattestation clause in the will involved inAldaba vs. Roque, (43 Phil.,378). In that case, the attestation claused formed part of the bodyof the will and its recital was made by the testratrix himself and was

signed by her and by the three instrumental witnesses. In upholdingthe validity of the will, the court said:

In reality it appears that it is the testratrix who makes thedeclaration about the points in the last paragraph of the will;however as the witnesses together with the testratrix, have


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that. The law does not require, and they do not certify that theysigned in the presence of each other much less, that the instrumentor deed has been executed according to legal requirements. Theyhave nothing to do or to say about the truth or falsity of thestatements contained in the body of the document. For all theyknow the vendor may not be the owner of the land he is selling, andthe vendee may not in fact have paid the amount stated as

received by the vendor. All that they know and impliedly affirm andattest is that they saw the parties sign the deed. And that is exactlywhat took place in the execution of the will in question. Thewitnesses signed merely as witnesses to the signature of thetestator. They neither expressly nor the impliedly aff irmed orcertified that the assertions about the signing of the will and everypage thereof, contained in the so-called attestation clause, are truefor the obvious reason that said clause is not their own, neitherhave they signed it.

Let us apply a simple a simple test. Supposing that the statements

contained in the so-called attestation clause in this case containeda false narration of facts. Can and may said three witnesses oranyone of them be properly and justly accused of falsification? Iseriously doubt it. They can truthfully and correctly say in theirdefense that they made no certificate, statement or narration,Whether false or true. The certificate and attestation was made onlyby the testator himself and not by them (witnesses). As admittedand stated in the majority opinion, it was he (testator) who spoke,not they(witnesses). It may be that the testator, as it were took thevery words out of their mouths, but the utterance and the

affirmation were his not theirs. He erroneously assumed their roleas attesting witnesses. But that is far from from fulfilling therequisites of the law that demands such utterance, assurance andaffirmation from three witness and from no one else.

Incidentally, it may be stated that what the testator states in saidclause could not have been all true. He says and certifies that thethree witnesses signed the will in his presence and in the presenceof each other. Then he signed said certificate or statement orclause. How could he truthfully and correctly say all this when at thetime that he was making the statement or certificate and at the veryinstant that he signed the same the three witnesses had not yet

signed (in his presence and in the presence of each other), for thesimple reason that they signed last, and, naturally, after the testatorhad made and signed his premature and untrue statement andaffirmation. The sequence is obviously wrong. In other words, thetestator was basing his statement and certificate upon a merefuture presumption and expectation.

The majority bolster its stand by citing the case of Aldaba vs.Roque, 43 Phil., 378, where a similar attestation clause was signedby the testatrix herself and this Court held that inasmuch as thewitnesses signed with the testatrix, it was a sufficient compliance

with the requirements of the law on wills. I am afraid of the doctrinelaid down in that case ofAldaba vs. Roque, supra, constitutes awide departure from the well established rule about due executionof wills and, for the guidance of prospective testators the bench andthe bar, it is about time that we revised said doctrine. We shouldstrictly comply with requirements of the law about the execution ofwills so as to effectively close the door to fraud, deceit, and duress.When the law requires that the attesting witnesses make theattestation and formal declaration, we should insist that they andnot someone else, even the testator, assume that role. Of what

value can the statement or attestation or certificate about thesignatures on the will, made by the testator be? Absolutely none. Itwill be remembered in the sense that it comes to life and goes intoeffect only after the death of the testator, not before. Naturally, inthe probate of a will, the testator can never be a witness toestablished and support the truth of the statement contained in his


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certificate or attestation. In other words, in a contested will whereevidence is required to prove the due execution of the statement, acertificate or affirmation made by the testator himself, besides beingunnecessary and not required by law, becomes an empty andineffective attestation because the attestator himself is no longeravailable to support it by his declaration under oath in court. That iswhy the law requires as attesting witnesses, three other persons

who might be expected to be yet alive and available when the will ispresented for probate. And when the will is contested the lawfurther requires all the said three witnesses to appear in court andtestify and ratify the statement clause.

So in the case ofIn Re Will of Tan Diuco, 45 Phil. 807, this courtspeaking attesting witnesses said that the three witnesses shouldsign the attestation clause "inasmuch as they alone can certify thefacts to be stated in said clause, for having taken a direct parttherein, as they saw the testator sign the will, or the personrequested by him to sign all the will, or the person requested by him

to sign all the sheets of the will, that is, the document constitutinghis last will and testament, and affirmed that it was signed under hisexpress direction in the presence said witnesses and that all thesheets thereof had also been signed by them in the presence ofsaid testator and of each of them, . . . ."

To consider the words and statements contained in the so-calledattestation clause in the presence case, as made and uttered bythe three witnesses just because they signed their names under thetestators signature, as witnesses to his signing the document, is to

ascribed and impute to them as their act and declaration an actclearly not their own, and to put into their mouth's words andstatements never uttered or spoken by them; it is to give to theclause and the signatures under it, a significance and meaning andeffect not warranted by normal and reasonable understanding andinterpretation.

Under the interpretation given to the clause in question by themajority opinion as well as the interpretation given by this Court to asimilar clause in the case ofAldaba vs. Roque, supra, in a casewhere a testator makes and signs a similar attestation clause, anythree persons who may happen to have been in the same roomwhere the testator was, and have seen him or where in a position tohave seen him affix his signature to his intended last will and

testament, may afterwards leave the room and go to theirrespective homes, towns and provinces; and subsequently, indeed,even after the death of the testator, when the persons or personswho prepared the will came to realize the necessity of attestingwitnesses, they could send the document to said witnesses, in theplaces where they may be found, one after the other and requestsaid three persons to sign as attesting witnesses; and each of saidthree persons may honestly, truthfully and without any mentalreservation, sign his name to the document as a witness for thereason that he had actually witnesses the signature of the testator,for after all, that is all that he impliedly certifies by his signature as a

witness, and, yet, such signatures of the witnesses under suchcircumstances would not only be without the contemplation of lawbut would also expressly and openly violate its requirements, forthe law provides that the attesting witnesses must certify and attestthat they signed as witnesses in the presence of the testator and inthe presence of each other, facts which are absolutely andcompletely wanting in the example given.

The foregoing are the reasons why i am of the opinion that theinterpretation given by the majority to the called attestation clause

in the present case, as well as the interpretation given by themajority to the so-called attestation clause in the case, as well theinterpretation given by this Court to a similar attestation clause inthe case ofAldaba vs. Roque, supra, are not exactly correct andwarranted.


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In the possibility that the testator in the present case, or the personor persons who prepared the will had relied upon the ruling laiddown in the case ofAldaba vs. Roque, supra, and that it would nowbe unfair to reject the present will when in its preparation a ruling bythis Court has been followed, I am willing to admit said will toprobate and I concur in the result of the majority opinion; but Idissent insofar as it holds out and regards the interpretation given

by it of the clause in question, as a doctrine that may be followed infuture cases, especially from now on. I also believe and hold thatfor the reasons stated in this occurring and dissenting opinion, thedoctrine laid down in the case ofAldaba vs. Roque, supra, shouldbe abandoned.

Gonzales v. CA90 SCRA 183 |ReyesFACTS:Isabel Gabriel died on June 7, 1961 without issue.LutgardaSantiago (respondent), niece of Isabel, filed a petition for

probateof Isabel' s will designa ting her as the principalbenef ic iary andexecutrix. The will was typewritten in Tagalogand was executed 2months prior to death of Isabel. The petitionwas opposed by Rizalina Gonzales (petitioner),also a niece ofIsabel, on the following grounds: 1. the will is notgenuine, 2.will was not executed and attested as required by law,3. thedecedent at the time of the making of the will did nothavetestamentary capacity due to her age and sickness, and 4. thewillwas procured through undue influence. The t ri a l cou rtd isal l owed the p robate of th e wi l l but theCourt of

Appeals Reversed the said decision of thetrial court. Thepetitioner filed a petiti on for review with SCclaiming that the CAerred in holding that the will of thedecedent was executed andattested as required by lawwhen there was abso lutely no proo f that the 3 instrumentalwitnesses are

credible.ISSUE:

1.1.

Can a witness be considered competent under Art 820-821

and still not be consideredcredibleas req ui red by Art .805?2.Is it required that there must beevidence on record thatthewitness to a will has good standing in his/her communityorthat he/she is honest or upright?HELD:

1.Yes.

The petitioner submits that the termcrediblein Article805 requires something more than just beingcompetentand,there fo re , a w i tness in add i t ion to be ingcompetentunderArt i cle s 820- 821mus t a lso be c redi ble unde r A rt. 805. Thecompetency ofa person to be an instrumental witness to a willis determined bythe statute (Art. 820 and 821), whereas hiscredibilitydepends on the appreciation of his testimony andar is esf rom the be l ie f and conc lus ion o f the Cour t tha t

saidwitness is telling the truth. In the case ofVd a. de Aroyo v. El Beaterio del Santissimo Rosario de Molo,No. L-22005, May 3,1968, the Supreme Court held andruled that: "Competency asa witness is one thing, and it isanother to be a credible witness,so credible that the Courtmus t acce pt what he say s. Tr i alcourts may allow a


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person to testify as a witness upon a givenmatter because he is competent, but maythe rea fter decidewhether to believe or not to believe histestimony."

2.No. There is no mandatory requirement that the

witnesstestify initially or at any time during the trial as to

his goodstanding in the community, his reputation fort rustworthinessand f or b eing re l iabl e, h is honest y an dup ri ght ne ss (su ch attributes are presumed of the witness

unless the contrary isproved othe rwis eby the oppo sin g part y) in orde r t hat his testimony may be

believed and accepted by the trial court. It isenough that thequalifications enumerated in Article 820 of theCivi l Code are

complied with, such that the soundness of hismind can beshown by or deduced from his answers to thequestionspropounded to him, that his age (18 years or more) isshown fromhis appearance, testimony , or competently provedotherwise, as

well as the fact that he is not blind, deaf or dumband tha t he isable to read and write to the satisfaction of theCourt, andthat he has non e of the d isqua l i f ica t ions underArticle

821 of the Civi

Republic of the Philippines

SUPREME COURTManila

FIRST DIVISION

G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, Petitioner, vs. HONORABLE COURT OFAPPEALS and LUTGARDA SANTIAGO, Respondents.

GUERRERO,J.:

This is a petition for review of the decision of the Court of Appeals,First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R

which reversed the decision of the Court of First Instance of Rizal

dated December 15, 1964 and allowed the probate of the last will andtestament of the deceased Isabel Gabriel. * chanrobles virtual law library

It appears that on June 24, 1961, herein private respondent Lutgarda

Santiago filed a petition with the Court of First Instance of Rizaldocketed as Special Proceedings No. 3617, for the probate of a will

alleged to have been executed by the deceased Isabel Gabriel anddesignating therein petitioner as the principal beneficiary andexecutrix.chanroblesvirtualawlibrarychanrobles virtual law library

There is no dispute in the records that the late Isabel Andres Gabrieldied as a widow and without issue in the municipality of Navotas,

province of Rizal her place of residence, on June 7, 1961 at the age of

eighty-five (85), having been born in 1876. It is likewise not

controverted that herein private respondent Lutgarda Santiago andpetitioner Rizalina Gabriel Gonzales are nieces of the deceased, andthat private respondent, with her husband and children, lived with the

deceased at the latters residence prior an- d up to the time of herdeath.chanroblesvirtualawlibrarychanrobles virtual law library

The will submitted for probate, Exhibit "F", which is typewritten and inTagalog, appears to have been executed in Manila on the 15th day of

April, 1961, or barely two (2) months prior to the death of Isabel

Gabriel. It consists of five (5) pages, including the pages whereon the

attestation clause and the acknowledgment of the notary public werewritten. The signatures of the deceased Isabel Gabriel appear at the

end of the will on page four and at the left margin of all the pages. Theattestation clause, which is found on page four, reads as follows: chanrobles virtual law library

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mgatinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga

pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at


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From this judgment of disallowance, Lutgarda Santiago appealed to

respondent Court, hence, the only issue decided on appeal waswhether or not the will in question was executed and attested as

required by law. The Court of Appeals, upon consideration of theevidence adduced by both parties, rendered the decision now under

review, holding that the will in question was signed and executed bythe deceased Isabel Gabriel on April 15, 1961 in the presence of the

three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria

Gimpaya, signing and witnessing the document in the presence of the

deceased and of each other as required by law, hence allow edprobate.chanroblesvirtualawlibrarychanrobles virtual law library

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the

aforesaid decision and such motion was opposed 4by petitioner-

appellant Lutgarda Santiago. Thereafter. parties submitted theirrespective Memoranda, 5 and on August 28, 1973, respondent Court,

Former Special First Division, by Resolution 6denied the motion forreconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence

shows that the supposed last wig and testament of Isabel Gabriel wasnot executed in accordance with law because the same was signed on

several occasions, that the testatrix did not sign the will in thepresence of all the instrumental witnesses did not sign the will in thepresence of each other. chanroblesvirtualawlibrarychanrobles virtual law library

The resolution of the factual issue raised in the motion forreconsideration hinges on the appreciation of the evidence. We have

carefully re-examined the oral and documentary evidence of record,There is no reason to alter the findings of fact in the decision of this

Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales

contends that respondent Court abused its discretion and/or actedwithout or in excess of its jurisdiction in reverssing the findings of fact

and conclusions of the trial court. The Court, after deliberating on thepetition but without giving due course resolved, in the Resolution

dated Oct. 11, 1973 to require the respondents to comment thereon,which comment was filed on Nov. 14, 1973. Upon consideration of the

allegations, the issues raised and the arguments adduced in the

petition, as well as the Comment 8 of private respondent thereon, Wedenied the petition by Resolution on November 26, 1973, 9 the

question raised being factual and for insufficient showing that the

findings of fact by respondent Court were unsupported by substantialevidence.chanroblesvirtualawlibrarychanrobles virtual law library

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goesfried a Motion for Reconsideration 10which private respondent

answered by way of her Comment or Opposition 11filed on January 15,1974. A Reply and Rejoinder to Reply followed. Finally, on March 27,1974, We resolved to give due course to the petition. chanroblesvirtualawlibrarychanrobles virtual law library

The petitioner in her brief makes the following assignment of errors: chanroblesvirtual law library

I. The respondent Court of Appeals erred in holding that thedocument, Exhibit "F" was executed and attested as required by law

when there was absolutely no proof that the three instrumentalwitnesses were credible witness chanrobles virtual law library

II. The Court of Appeals erred in reversing the finding of the lowercourt that the preparation and execution of the win Exhibit "F", was

unexpected and coincidental.chanroblesvirtualawlibrarychanrobles virtual law library

III. The Court of Appeals erred in finding that Atty, Paraiso was notpreviously furnished with the names and residence certificates of thewitnesses as to enable him to type such data into the documentExhibit "F".chanroblesvirtualawlibrarychanrobles virtual law library

IV. The Court of Appeals erred in holding that the fact that the threetypewritten lines under the typewritten words "Pangalan" and

"Tinitirahan" were left blank shows beyond cavil that the threeattesting witnesses were all present in the same occasion.chanroblesvirtualawlibrarychanrobles virtual law library

V. The Court of Appeals erred in reversing the trial court's finding thatit was incredible that Isabel Gabriel could have dictated the wiltExhibit "F , without any note or document, to Atty. Paraiso. chanroblesvirtualawlibrarychanrobles virtual law library

VI. The Court of Appeals erred in reversing the finding of the trialcourt that Matilde Orobia was not physically present when the Will

Exhibit "F" was allegedly signed on April 15, 1961 by the deceasedIsabel Gabriel and the other witnesses Celso Gimpaya and Maria

Gimpaya.chanroblesvirtualawlibrarychanrobles virtual law library


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execution of wills while Article 821 sets forth the disqualification frombeing a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years

or more, and not blind, deaf or dumb, and able to read and write, maybe a witness to the execution of a will mentioned in article 806 of this

Code. "Art. 821. The following are disqualified from being witnesses toa will: chanrobles virtual law library

(1) Any person not domiciled in the Philippines, chanrobles virtual law library

(2) Those who have been convicted of falsification of a document,perjury or false testimony.

Under the law, there is no mandatory requirement that the witness

testify initially or at any time during the trial as to his good standing inthe community, his reputation for trustworthythiness and reliableness,

his honesty and uprightness in order that his testimony may bebelieved and accepted by the trial court. It is enough that the

qualifications enumerated in Article 820 of the Civil Code are complied

with, such that the soundness of his mind can be shown by or deducedfrom his answers to the questions propounded to him, that his age (18

years or more) is shown from his appearance, testimony , orcompetently proved otherwise, as well as the fact that he is not blind,

deaf or dumb and that he is able to read and write to the satisfactionof the Court, and that he has none of the disqualifications under

Article 821 of the Civil Code. We reject petitioner's contention that it

must first be established in the record the good standing of thewitness in the community, his reputation for trustworthiness and

reliableness, his honesty and uprightness, because such attributes arepresumed of the witness unless the contrary is proved otherwise bythe opposing party. chanroblesvirtualawlibrarychanrobles virtual law library

We also reject as without merit petitioner's contention that the term"credible" as used in the Civil Code should be given the same meaning

it has under the Naturalization Law where the law is mandatory thatthe petition for naturalization must be supported by two character

witnesses who must prove their good standing in the community,

reputation for trustworthiness and reliableness, their honesty anduprightness. The two witnesses in a petition for naturalization are

character witnesses in that being citizens of the Philippines, they

personally know the petitioner to be a resident of the Philippines for

the period of time required by the Act and a person of good repute andmorally irreproachable and that said petitioner has in their opinion all

the qualifications necessary to become a citizen of the Philippines andis not in any way disqualified under the provisions of the

Naturalization Law (Section 7, Commonwealth Act No. 473 asamended).chanroblesvirtualawlibrary chanrobles virtual law library

In probate proceedings, the instrumental witnesses are not character

witnesses for they merely attest the execution of a will or testamentand affirm the formalities attendant to said execution. And We agree

with the respondent that the rulings laid down in the cases cited bypetitioner concerning character witnesses in naturalization

proceedings are not applicable to instrumental witnesses to willsexecuted under the Civil Code of the Philippines. chanroblesvirtualawlibrarychanrobles virtual law library

In the case at bar, the finding that each and everyone of the three

instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya andMaria Gimpaya, are competent and credible is satisfactorily supported

by the evidence as found by the respondent Court of Appeals, which

findings of fact this Tribunal is bound to accept and rely upon.Moreover, petitioner has not pointed to any disqualification of any of

the said witnesses, much less has it been shown that anyone of themis below 18 years of age, of unsound mind, deaf or dumb, or cannotread or write.chanroblesvirtualawlibrarychanrobles virtual law library

It is true that under Article 805 of the New Civil Code, every will, otherthan a holographic will, must be subscribed at the end thereof by the

testator himself or by the testator's name written by some otherperson 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, While the petitioner submits that Article820 and 821 of the New Civil Code speak of the competency of a

witness due to his qualifications under the first Article and none of thedisqualifications under the second Article, whereas Article 805

requires the attestation of three or more credible witnesses, petitionerconcludes that the term credible requires something more than just

being competent and, therefore, a witness in addition tobeingcompetentunder Articles 820 and 821 must also be a crediblewitness under Article 805.chanroblesvirtualawlibrarychanrobles virtual law library


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Petitioner cites American authorities that competency and credibility

of a witness are not synonymous terms and one may be a competentwitness and yet not a credible one. She exacerbates that there is no

evidence on record to show that the instrumental witnesses arecredible in themselves, that is, that they are of good standing in the

community since one was a family driver by profession and the secondthe wife of the driver, a housekeeper. It is true that Celso Gimpaya

was the driver of the testatrix and his wife Maria Gimpaya, merely a

housekeeper, and that Matilde Orobia was a piano teacher to a

grandchild of the testatrix But the relation of employer and employeemuch less the humble or financial position of a person do notdisqualify him to be a competent testamentary witness. (Molo Pekson

and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate ofRaymundo, Off. Gaz., March 18,1941, p. 788). chanroblesvirtualawlibrarychanrobles virtual law library

Private respondent maintains that the qualifications of the three or

more credible witnesses mentioned in Article 805 of the Civil Code are

those mentioned in Article 820 of the same Code, this being obviousfrom that portion of Article 820 which says "may be Q witness to the

execution of a will mentioned in Article 805 of this Code," and citesauthorities that the word "credible" insofar as witnesses to a will are

concerned simply means " competent." Thus, in the case ofSuntay vs.

Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a willwas duly executed and that it was in existence at the time of, and not

revoked before, the death of the testator, still the provisions of thelost wig must be clearly and distinctly proved by at least two credible

witnesses. 'Credible witnesses' mean competent witnesses and notthose who testify to facts from or upon hearsay."emphasissupplied).chanroblesvirtualawlibrarychanrobles virtual law library

In Molo Pekson and Perez Nable vs. Tanchuco, et al. , 100 Phil. 344, theSupreme Court held that "Section 620 of the same Code of Civil

Procedure provides that any person of sound mind, and of the age ofeighteen years or more, and not blind, deaf, or dumb and able to read

and write, may be a witness to the execution of a will. This same

provision is reproduced in our New Civil Code of 1950, under Art. 820.The relation of employer and employee, or being a relative to the

beneficiary in a win, does not disqualify one to be a witness to a will.The main qualification of a witness in the attestation of wills, if other

qualifications as to age, mental capacity and literacy are present, is

that said witness must be credible, that is to say, his testimony may

be entitled to credence. There is a long line of authorities on thispoint, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental

incapacity, crime, or other cause. Historical Soc of Dauphin County vs.Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words andPhrases, Vol. 10, p. 340).chanroblesvirtualawlibrarychanrobles virtual law library

As construed by the common law, a 'credible witness' to a will means

a 'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann.Cas. 1917A, 837. (lbid, p. 341).chanroblesvirtualawlibrarychanrobles virtual law library

Expression 'credible witness' in relation to attestation of wins means

'competent witness that is, one competent under the law to testify tofact of execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First

State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p.342) chanrobles virtual law library

The term 'credible', used in the statute of wills requiring that a will

shall be attested by two credible witnesses means competent;

witnesses who, at the time of attesting the will, are legally competentto testify, in a court of justice, to the facts attested by subscribing the

will, the competency being determined as of the date of the executionof the will and not of the timr it is offered for probate, Smith vs.Goodell101 N.E. 255, 256, 258 111. 145. (Ibid.) chanrobles virtual law library

Credible witnesses as used in the statute relating to wills, means

competent witnesses - that is, such persons as are not legallydisqualified from testifying in courts of justice, by reason of mental

incapacity, interest, or the commission of crimes, or other cause

excluding them from testifying generally, or rendering them

incompetent in respect of the particular subject matter or in theparticular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental

witness to a will is determined by the statute, that is Art. 820 and 821,Civil Code, whereas his credibility depends On the appreciation of his

testimony and arises from the belief and conclusion of the Court thatsaid witness is telling the truth. Thus, in the case ofVda. de Aroyo v.

El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968,


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the Supreme Court held and ruled that: "Competency as a witness is

one thing, and it is another to be a credible witness, so credible thatthe Court must accept what he says. Trial courts may allow a person

to testify as a witness upon a given matter because he is competent,but may thereafter decide whether to believe or not to believe his

testimony." In fine, We state the rule that the instrumental witnessesin Order to be competent must be shown to have the qualifications

under Article 820 of the Civil Code and none of the disqualifications

under Article 821 and for their testimony to be credible, that is worthy

of belief and entitled to credence, it is not mandatory that evidence befirst established on record that the witnesses have a good standing inthe community or that they are honest and upright or reputed to be

trustworthy and reliable, for a person is presumed to be such unlessthe contrary is established otherwise. In other words, the

instrumental witnesses must be competent and their testimonies must

be credible before the court allows the probate of the will they haveattested. We, therefore, reject petitioner's position that it was fatal for

respondent not to have introduced prior and independent proof of thefact that the witnesses were "credible witnesses that is, that they

have a good standing in the community and reputed to be trustworthyand reliable.chanroblesvirtualawlibrarychanrobles virtual law library

Under the second, third, fourth, fifth, sixth, seventh and eighthassignments of errors, petitioner disputes the findings of fact of the

respondent court in finding that the preparation and execution of thewill was expected and not coincidental, in finding that Atty. Paraiso

was not previously furnished with the names and residencecertificates of the witnesses as to enable him to type such data into

the document Exhibit "F", in holding that the fact that the threetypewritten lines under the typewritten words "pangalan" and

"tinitirahan" were left blank shows beyond cavil that the threeattesting witnesses were all present in the same occasion, in holding

credible that Isabel Gabriel could have dictated the will without noteor document to Atty. Paraiso, in holding that Matilde Orobia was

physically present when the will was signed on April 15, 1961 by thedeceased Isabel Gabriel and the other witnesses Celso Gimpaya and

Maria Gimpaya, in holding that the trial court gave undue importanceto the picture takings as proof that the will was improperly executed,and in holding that the grave contradictions, evasions and

misrepresentations of the witnesses (subscribing and notary)presented by the petitioner had been explained away. chanroblesvirtualawlibrarychanrobles virtual law library

Since the above errors are factual We must repeat what We have

previously laid down that the findings of fact of the appellate court arebinding and controlling which We cannot review, subject to certain

exceptions which We win consider and discuss hereinafter. We areconvinced that the appellate court's findings are sufficiently justified

and supported by the evidence on record. Thus, the allegedunnaturalness characterizing the trip of the testatrix to the office of

Atty. Paraiso and bringing all the witnesses without previous

appointment for the preparation and execution of the win and that it

was coincidental that Atty. Paraiso was available at the momentimpugns the finding of the Court of Appeals that although Atty.Paraiso admitted the visit of Isabel Gabriel and of her companions to

his office on April 15, 1961 was unexpected as there was no priorappointment with him, but he explained that he was available for any

business transaction on that day and that Isabel Gabriel had earlier

requested him to help her prepare her will. The finding of theappellate court is amply based on the testimony of Celso Gimpaya that

he was not only informed on the morning of the day that he witnessedthe will but that it was the third time when Isabel Gabriel told him

that he was going to witness the making of her will, as well as thetestimony of Maria Gimpaya that she was called by her husband Celso

Gimpaya to proceed to Isabel Gabriel's house which was nearby andfrom said house, they left in a car to the lawyer's office, whichtestimonies are recited in the respondent Court's decision.chanroblesvirtualawlibrarychanrobles virtual law library

The respondent Court further found the following facts: that Celso

Gimpaya and his wife Maria Gimpaya obtained residence certificates afew days before Exhibit "F" was executed. Celso Gimpaya's residence

certificate No. A-5114942 was issued at Navotas, Rizal on April 13,1961 while Maria Gimpaya's residence certificate No. A-5114974 was

issued also at Navotas, Rizal on April 14, 1961. The respondent Courtcorrectly observed that there was nothing surprising in these facts

and that the securing of these residence certificates two days and oneday, respectively, before the execution of the will on April 15, 1961,

far from showing an amazing coincidence, reveals that the spouseswere earlier notified that they would be witnesses to the execution of

Isabel Gabriel's will.chanroblesvirtualawlibrarychanrobles virtual law library

We also agree with the respondent Court's conclusion that the

excursion to the office of Atty. Paraiso was planned by the deceased,

which conclusion was correctly drawn from the testimony of theGimpaya spouses that they started from the Navotas residence of the


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succession cases- wills

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