Icasiano vs.

Icasiano * both original and duplicate copies were duly acknowledged before
the Notary Public on the same date.
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE. 2. The will consisted of five pages and while signed at the end and in every
CELSO ICASIANO, petitioner-appellee, page, it does not contain the signature of one of the attesting witnesses, Atty.
vs. Jose Natividad on page 3 thereof; but the duplicate copy attached was
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants. signed by the testatrix and the three attesting witnesses in each and every
page.
Notes: (from business dictionary)
ISSUE: Does the failure of one of the attesting witnesses to sign on one
Definition of duplicate copy
page of the original invalidate the will, and hence, denial of the probate?
The two classifications are: (1) copies produced for information purposes
HELD: NO.
only and which may be destroyed after use, and (2) copies that
have administrative, fiscal, legal, or historical value. 1. The inadvertent failure of one of the witnesses to affix his signature to one
page of a testament, due to the simultaneous lifting of two pages in the
Definition of duplicate original
course of signing, is not per se sufficient to justify the denial of the probate.
A copy that has all the essential aspects of the original, including signatures. The impossibility of substituting this page is cured since the testatrix and two
other witnesses signed the defective page, and that the document bears the
Notes imprint of the seal of the notary public before whom the testament was
ratified by the testatrix and all three witnesses.
A duplicate original of a letter may be created and sent by different routes to
increase the likelihood that at least one original copy arrives to the 2. The law should not be strictly and literally interpreted as to penalize the
addressee. testatrix on account of the inadvertence of a single witness over whose
conduct she has no control, where the purpose of the law to guarantee the
FACTS: identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existence, and the evidence on record
1. JosefaVillacorta executed her last will and testament in duplicate on June attests to the full observance of the statutory requisites.
2, 1956 and she died on Sept. 12, 1958. The will was:
3. Despite the literal tenor of the law, the Court has held that in other cases
* attested by three instrumental witnesses- Justo Torres Jr., Jose that;
Natividad and VinicioDy
a. a testament with the only page signed at its foot by the testator and
* acknowledged by the testatrix and the three instrumental witnesses witnesses but not in the left margin could be probated(Abangan vs. Abangan)
on the same date before Atty. Ong, Notary Public
b. despite the requirement of correlative lettering of the pages of a will, the
* the will was actually prepared by Atty. Samson who was present failure to make the first page either by letters or numbers is not a fatal defect
during the execution and signing of the decedent’s last will and testament. (Lopez vs. Liboro).

* pages of the original and duplicate were duly numbered These precedents exemplify the Court’s policy to require satisfaction of the
legal requirements in order to guard against fraud and bad faith, but without
* the attestation clause contains all the facts required by law to be undue or unnecessary curtailment of the testamentary privilege.
recited therein and signed by the attesting witnesses
4. The appellants also argued that since the original of the will is in existence
* will is written in the language known to and spoken by the testatrix and available, the duplicate is not entitled to probate. Since they opposed
(Tagalog) the probate of the original because of the lacking signature on page 3, it is
easily discerned that the oppositors-appellants run into a dilemma. If the
* will was executed in one single occasion in duplicate copies original is defective and invalid, then in the law, there is no other will but the
duly signed carbon duplicate, 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, Cruz vs. Villasor
serves to prove that the omission of one signature in the third page of the
original testament was inadvertent and not intentional. AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Civil Code Provisions:

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

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

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

If the attestation clause is in a language not known to the witnesses, it

shall be interpreted to them. (n)

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

FACTS:

1. The only question presented for determination, on which the decision of

this case hinges, is whether the supposed Last Will and Testament of
Valente Z. Cruz (Cruz) was executed in accordance with:

Art. 805- which states at at least three credible witnesses must attest
and subscribe to the will and

Art. 806- requiring the testator and the witnesses to acknowledge the
will before a notary public.
2. Of the three instrumental witnesses on the supposed Last Will and acknowledged. The petitioner argues that as a result thereof, the will has only
Testament of Cruz, one of them, Atty. Angel Teves (Teves), acted also as two witnesses who appeared before the notary public to acknowledge the will.
the notary public before whom the will was supposed to have been
3. The respondent, Lugay, who is supposed to execute the will, stated that Roberts v. Leonidas
there was substantial compliance with the legal requirement of three attesting
witnesses, even if one of them acted as a notary public based on American ETHEL GRIMM ROBERTS V. HON. LEONIDAS, MAXINE TATE-GRIMM
jurisprudence.
ET AL, 129 SCRA 33 (1984)
ISSUE: Can the notary public be considered as the third attesting witness?
FACTS: Edward Grimm was an American residing in Manila until his death in
HELD: No. The probate of the Last will and Testament of Cruz is declared 1977. He was survived by his 2nd wife (Maxine), their two children (Pete and
not valid and set aside. Linda), and by his two children from a 1st marriage (Juanita and Ethel) which
ended in divorce
1. The notary public cannot acknowledge before himself his having
signed the will. If the third witness is the notary public himself, he
1. Grimm executed two wills in San Francisco, CA in January 1959.
would have to avow, assent or admit as his having signed the will in
One will disposed of his Philippine estate described as conjugal
front of himself. This cannot be done because he cannot split his
property of himself and his 2 nd wife. The second will disposed of his
personality into two so that one will appear before the other to
estate outside the Philippines.
acknowledge his participation in the making of the will.
2. The function of a notary public is to guard against any illegal or 2. The two wills and a codicil were presented for probate in Utah by
immoral arrangements. That would be defeated if he was also the Maxine in March 1978. Maxine admitted that she received notice of
attesting witness. He would be interested in sustaining the validity of the intestate petition filed in Manila by Ethel in January 1978.
the will, as it directly involves himself and the validity of his own act. Subsequently, the Utah court admitted the two wills and a codicil for
It would place him in an inconsistent position and the very purpose of probate in April 1978, and was issued upon consideration of the
the acknowledgment, which is to minimize fraud. stipulation between the lawyers fro Maxine and Ethel
3. American jurisprudence cannot be used here for we are in Philippine 3. In April 1978, Maxine and Ethel, with knowledge of the intestate
jurisdiction. In the U.S., the notary public and witnesses referred to proceeding in Manila, entered into an agreement in Utah regarding
in several jurisprudence merely acted as instrumental, subscribing or the estate. The agreement provided that Maxine, Pete and Ethel
attesting witnesses and not as acknowledging witnesses. Here, the would be designated as personal representatives (administrators) of
notary public acted not only as attesting witness but also as Grimm’s Philippine estate and that Maxine’s ½ conjugal share in the
acknowledging witness. estate should be reserved for her which would not be less than $1.5
4. In allowing the notary public to act as third witness, or one of the million plus the homes in Utah and Sta. Mesa.
attesting and acknowledging witness, would have the effect of only 4. Manila Intestate Proceedings: Maxine filed an opposition and motion
two attesting witnesses to the will which is violative of Art. 805 to dismiss the intestate proceeding in Manila on the ground of
requiring at least 3 witnesses and Art. 806 which requires the pendency of the Utah probate proceedings. However, pursuant to the
testator and the required number of witnesses to appear before the compromise agreement, Maxine withdrew the opposition and motion
notary public to acknowledge the will. to dismiss. The court ignored the will found in the record. The estate
was partitioned.
5. In 1980, Maxine filed a petition praying for the probate of the two
wills (which was already probated in Utah), that the partition
approved by the intestate court be set aside, and that Maxine be
named executrix, and Ethel be ordered to account for the properties
received by them and return the same to Maxine. Maxine alleged
that they were defrauded due to the machinations of the Ethel, that
the compromise agreement was illegal and the intestate proceeding
was void because Grimm died testate so the partition was contrary to
the decedent’s wills.
6. Ethel filed a motion to dismiss the petition which was denied by
respondent Judge for lack of merit
ISSUE: WON respondent Judge committed grave abuse of discretion in
denying Ethel’s motion to dismiss

HELD: No. A testate proceeding is proper in this case because Grimm died
with two wills and “no will shall pass either real or personal property unless it
is proved and allowed.”

The probate of the will is mandatory. It is anomalous that the estate of a

person who died testate should be settled through an intestate proceeding.
Therefore, the intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate proceeding should continue
hearing the two cases.