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

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

Formal Requirements Common to Notarial and Holographic Wills Art.804, 818

FACTS:
1.) In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and
lot to a certain Marilyn Suroza.
2.) In 1974, Marcelina died. Marina Paje was named as the executrix in the said will and she
petitioned before CFI Rizal that the will be admitted to probate.
3.) The presiding judge, Honrado admitted the will to probate and assigned Paje as the
administratrix.
4.) Honrado also issued an ejectment order against the occupants of the house and lot
subject of the will.
5.) Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined
in the Veterans Hospital), learned of the probate proceeding when she received the
ejectment order (as she was residing in said house and lot).
6.) Nenita opposed the probate proceeding.
7.) She alleged that the said notarial will is void because (a) the instituted heir therein Marilyn
Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the only son of
Marcelina, Agapito Suroza, is still alive and is the compulsory heir, (c) the notarial will is
written in English a language not known to Marcelina because the latter was illiterate so
much so that she merely thumbmarked the will, (d) the notary public who notarized will
admitted that Marcelina never appeared before him and that he notarized the said will
merely to accommodate the request of a lawyer friend but with the understanding that
Marcelina should later appear before him but that never happened.
8.) Honrado still continued with the probate despite the opposition until testamentary
proceeding closed and the property transferred to Marilyn Sy.
9.) Nenita then filed this administrative case against Honrado on the ground of misconduct.
ISSUE
:
Was there sucient evidence on record to show that the will on its face was void?
Whether or not Honrado is guilty of misconduct for admitting into probate a void will.
HELD:
Upon perusing the will and noting that it was written in English and was thumb marked byan
obviously illiterate testatrix, respondent Judge could have readily perceived that the will is void.In
the opening paragraph of the will, it was stated that English was a language understood
andknown to the testatrix. But in its concluding paragraph, it was stated that the will was read to
thetestatrix and translated into Filipino language. That could only mean that the will was written
in alanguage not known to the illiterate testatrix and, therefore, it is void because of the
mandatoryprovision of Article 804 of the Civil Code that every will must be executed in a language
or dialectknown to the testator. Thus, a will written in English, which was not known to the Igorot
testator, is void (Acop v. Piraso, 52 Phil.660)
2nd Issue:

A.) Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary
proceeding, this showed his wrongful intent. He may even be criminally liable for
knowingly rendering an unjust judgment or interlocutory order or rendering a
 manifestly unjust judgment or interlocutory order by reason of inexcusable negligence
or ignorance.
B.) The will is written in English and was thumb marked by an obviously illiterate
Marcelina.
C.) This could have readily been perceived by Honrado that that the will is void. In the
opening paragraph of the will, it was stated that English was a language understood
and known to the testatrix. But in its concluding paragraph, it was stated that the will
was read to the testatrix and translated into Filipino language.
D.) That could only mean that the will was written in a language not known to the illiterate
testatrix and, therefore, it is void because of the mandatory provision of Article 804 of
the Civil Code that every will must be executed in a language or dialect known to the
testator.
E.) Had Honrado been careful and observant, he could have noted not only the anomaly
as to the language of the will but also that there was something wrong in instituting to
Marilyn Sy as sole heiress and giving nothing at all to Agapito who was still alive.
Honrado was fined by the Supreme Court.

FIRST DIVISION
[G.R. No. 13431. November 12, 1919.]
In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs.
ANASTACIA ABANGAN ET AL., opponents-appellants.
Notarial Wills Art. 805-809, 820-824

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

2.) The will consists of 2 sheets. The first contains all the disposition of the testatrix, duly signed
at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by
three witnesses. The following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses.

3.) Neither of these sheets is signed on the left margin by the testatrix and the three witnesses,
nor numbered by letters. These omissions, according to appellants contention, are defects
whereby the probate of the will should have been denied.

ISSUES

Whether or not the will was duly admitted to probate.

HELD:

YES. In requiring that each and every sheet of the will be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 evidently has for its
object the avoidance of substitution of any of said sheets which may change the disposition of
the testatrix. But when these dispositions are wholly written on only one sheet (as in the instant
case) signed at the bottom by the testator and three witnesses, their signatures on the left
margin of said sheet are not anymore necessary as such will be purposeless.

In requiring that each and every page of a will must be numbered correlatively in letters placed
on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know
whether any sheet of the will has been removed. But, when all the dispositive parts of a will are
written on one sheet only, the object of the statute disappears because the removal of this
single sheet, although unnumbered, cannot be hidden.

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

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordal ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustative of the testators last will, must be
disregarded.

IN RE Will of Gabina Raquel

Aurea Matias v. Basilia Salud

L-10751, 23 June 1958

FACTS:

1.)Aurea Matias initiated said special proceedings with a petition for the probate of a document
purporting to be the last will and testament of her aunt, Gabina Raquel. Aurea Matias, likewise,
appointed therein as executrix thereof, without bond.

2.) Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and,
after appropriate proceedings, the court, presided over by respondent Judge, issued an order,
dated February 8, 1956, sustaining said opposition and denying the petition for probate.
3.) Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751),
where it is now pending decision.

4.) The document consist of 3 pages and it seems that after the attestation clause, there
appears the siganture of the testatrix 'Gabina Raquel', alongside is a smudged in violet ink
claimed by the proponents as the thumbmark allegedly affixed by the tetratrix.

5.) On the third page at the end of the attestation clause appears signatures on the left margin
of each page, and also on the upper part of each left margin appears the same violet ink
smudge accompanied by the written words 'Gabina Raquel' with 'by Lourdes Samonte'
underneath it.

6.)The probate was opposed by Basilia Salud, the niece of the decedent.

7.)The CFI of cavite denied the probate on the ground that the attestation clause did not state
that the testatrix and the witnesses signed each and every page nor did it express that Lourdes
was specially directed to sign after the testatrix.

8.) It must be noted that Gabina Raquel was suffering from herpes zoster that afflicted the right
arm and shoulder of the testatrix, which made writing difficult and a painful act. Thus, upon the
insistence of the attorney, Gabina attempted to sign, but since it was so painful she just
managed to thumbmarked the foot of the document and the left margin at each page.

9.)The parties opposing the probate of the will contended that the will was void due to the
irregularities in the execution thereof.

10.) One of the points raised by the oppositors was that the finger mark can not be regarded as
the decedents valid signature as it does not show distinct identifying ridgelines. And since the
finger mark was an invalid signature, there must appear in the attestation clause that another
person wrote the testators name at his request.

ISSUE:

W/N the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to

require dexterity that can be expected of very few persons; testators should not be required to
possess the skill of trained officers.

And as to the validity of the thumbprints as signature, the SC held that it has been held in a long
line of cases that a thumbprint is always a valid and sufficient signature for the purpose of
complying with the requirement of the article.
This court has repeatedly held that the legal requirsite that the will should be signed by the
testator is satisfied by a thumbprint

Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A
thumbprint is considered as a valid and sufficient signature in complying with the requirements
of the article.

PRIMITIVO GONZALEZ Y LAUREL, applicant-appellee,vs.JOVITA LAUREL Y TAPIA,

opponent-appellant.G.R. No. L-19079, January 15, 1923

FACTS:

1.)The Court of First Instance of Batangas allowed the probate of the last will and testament of
the deceased Maria Tapia.

2.) Jovita Laurel now appeals to this court from that ruling of the court below, alleging, among
others, that court erred:

1. In holding that the supposed will of the deceased Maria Tapia was executed with the
solemnities prescribed by the law, not with standing that there was no proof of the dialect known
by the said deceased;

2. In not holding that the signatures of Maria Tapia appearing in the will had been obtained
through deceit, surprise, fraud, and in an illegal and improper manner

3.) Concerning the first error assigned, it appears that the deceased Maria Tapia was a resident
of the Province of Batangas, a Tagalog region, where said deceased had real properties for
several years.

4.)It also appears that she requested Modesto Castillo to draw her will in Tagalog. From the
record taken as a whole, a presumption arises that said Maria Tapia knew the Tagalog dialect,
which presumption is now conclusive for not having been overthrown nor rebutted.

ISSUE:

Whether or not the will is valid for being written in a dialect not known to the testator. Whether
or not the testatrix acted voluntarily and with full knowledge in executing and signing the will

HELD

: YES. The deceased Maria Tapia was a resident of the Province of Batangas, a Tagalog
region, where said deceased had real properties for several years.

She requested Modesto Castilloto draw her will in Tagalog. From the record taken as a whole, a
presumption arises that said Maria Tapia knew the Tagalog dialect, which presumption is now
conclusive for not having been overthrown nor rebutted.
With the Second Issue: YES. With respect to the second issue, the preponderance of evidence
established that the will was executed and signed by Maria Tapia voluntarily and with full
knowledge, without fraud, deceit, surprise, or undue influence or machinations of anybody, she
being then mentally capacitated and free.

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,

vs.

JULIANA LACUESTA, ET AL., respondents

90 Phil 489

November 29, 1951

Facts:

1.Antero Mercado left a will dated January 3, 1943. The will is written in the Ilocano dialect
which is spoken and understood by the testator.

2. The will also contained an attestation clause which is signed by three witnesses. The
attestation clause states:

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.

3. The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier.

4. Antero Mercado is alleged also to have written a cross immediately after his name.

Issue: Whether or not the attestation clause in the will is valid.

Ruling: No. 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. When the testator expressly caused
another to sign the formers name, this fact must be recited in the attestation clause. Otherwise,
the will is fatally defective.
Moreover, the cross appearing on the will is not the usual signature of Antero Mercado nor is it
even one of the ways by which he signed his name. After mature reflection, the Court is 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. Thus, the cross cannot be
considered a valid signature.

YAP TUA, petitioner-appellee, vs. YAP CA KUAN and YAP CA LLU, objectors-appellants.

YAP TUA vs. YAP CA KUAN and YAP CA LLU

[G.R. No. 6845. September 1, 1914.]

JOHNSON, J.:

FACTS:

1.)August, 1909, one Perfecto Gabriel, representing the petitioner, Yap Tua, presented a
petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga
Yap Caong be admitted to probate, as the last will and testament of Tomasa Elizaga Yap
Caong, deceased.

2.) Tomasa Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909.

3.) Together with the petition was the will, signed by deceased, as well as Anselmo Zacarias,
Severo Tabora, and Timoteo Paez.

4.) During the hearing, Timoteo Paez and Pablo Agustin declared that they knew the said
Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her
death she had executed a last will and testament; that he was present at the time of the
execution of the same; that he had signed the will as a witness; that Aselmo Zacarias and
Severo Tabora had also signed said will as witnesses and that they had signed the will in the
presence of the deceased; that the said Tomasa Elizaga Yap Caong signed the will voluntarily;
and in their judgment, she was in the possession of her faculties; that there were no threats or
intimidation used to induce her to sign the will; that she signed it voluntarily.

5.(It was ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and
admitted to probate.

6.) From the record it appears that no further proceedings were had until the 28th of February,
1910, when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they
were interested in the matters of the sail will and desired to intervene asked that a guardian ad
litem be appointed to represented them in the cause.

7.) The court appointed guardian ad litem of said parties, Gabriel La O, appeared in court and
presented a motion in which he alleged, in substance:
8.)Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not
then mentally capacitated to execute the same, due to her sickness.

ISSUE:

Whether or not the court erred in declaring that the testator had clear knowledge and knew what
she was doing at the time of signing the will.

HELD:

NO. Article 800 of the Civil Code states that:

A.The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

B.The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval.

C. SC HELD: We find the same conflict in the declarations of the witnesses which we found with
reference to the undue influence. While the testimony of Dr. Papa is very strong relating to the
mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related to a
time perhaps twenty-four hours before the execution of the will in question (Exhibit A). Several
witnesses testified that at the time the will was presented to her for her signature, she was of
sound mind and memory and asked for a pen and ink and kept the will in her possession for ten
or fifteen minutes and finally signed it. The lower court found that there was a preponderance of
evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind and
memory and in the possession of her faculties at the time she signed this will. In view of the
conflict in the testimony of the witnesses and the finding of the lower court, we do not feel
justified in reversing his conclusions upon that question.

Upon a full consideration of the record, we find that a preponderance of the proof shows that
Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of
all of her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the
lower court admitting said will to probate is hereby affirmed with costs.

[G.R. No. 6285. February 15, 1912.]

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

appellees.

Facts:

1.Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition
that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907.
2.The said will was witnessed by 3 persons. From the terms it appears that the petitioner
received a larger part of decedent's property.

3.) After this disposition, the testatrix revoked all other wills and stated that since she is unable
to read nor write, the will was read to her and that she has instructed Severino Agapan, one of
the witnesses to sign her name in her behalf.

4.)The lower court ruled that the will is not entitled to probate on the sole ground that the
handwriting of the person who signed the name of the testatrix does not appear to be that of
Agapan but that of another witness.

Issue: Whether or not a will's validity is affected when the person instructed by a testator to write
his name did not sign his name. Was the dissimilarity in handwriting sufficient to deny probate of
the will?

HELD No.

The SC found that the mere dissimilarity in writing is sufficient to overcome the uncontradicted
testimony of all the witnesses that the signature of the testatrix was written by Severo Agayan. It
is also immaterial who writes the name of the testatrix provided it is written at her request and in
her presence and in the presence of all the witnesses to the execution of the will.

Based on Section 618 of the Code of Civil Procedure, it is clear that with respect to the validity
of the will, it is unimportant whether the person who writes the name of the testatrix signs his
own or not. The important thing is that it clearly appears that the name of the testatrix was
signed at her express direction in the presence of 3 witnesses and that they attested and
subscribed it in her presence and in the presence of each other. It may be wise that the one
who signs the testators name signs also his own; but that is not essential to the validity of the
will.

The court also held that the 3 cases cited by the lower court was not applicable. In those cases,
the person who signed the will for the testator wrote his own name instead of the testators, so
that the testators name nowhere appeared in the will, and were thus wills not duly executed.

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

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth
no reason whatever why the will involved in the present litigation should not be probated. The due
and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon
the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have already spoken. We there held that said later will not
the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to enter
an order in the usual form probating the will involved in this litigation and to proceed with such
probate in accordance with law.

[G.R. No. L-15153. August 31, 1960.]

In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana.
LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors-
appellants.

1.)Anacleta Abellana left a will. appears on record that the last Will and Testament sought to
be probated In said will, she let a certain Juan Bello sign the will for her.
2.) The will consists of two pages. The first page is signed by Juan Abello and under his name
appears typewritten Por la testadora Anacleta Abellana.
3.) On the second page, appears the signature of Juan Bello under whose name appears
the phrase, Por la Testadora Anacleta Abellana this time, the phrase is handwritten.
4. at the bottom of which appears the signature of the notary public and below said signature
is his designation as notary public

5. On the left margin of the second page (last page of the will) appears the signature of Juan
Bello under whose name appears handwritten the phrase or la Testadore Anacleta Abellana

(For the Testate of Anacleta Abellana). The will is duly acknowledged before the notary
public.

ISSUE: Whether or not the signature of Bello appearing above the typewritten phrase Por la
testadora Anacleta Abellana comply with the requirements of the law prescribing the manner
in which a will shall be executed.
HELD: No.
Article 805 of the Civil Code provides that:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testators 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.
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under
the will by said Abellana herself, or by Juan Abello. There is, therefore, a failure to comply
with the express requirement in the law that the testator must himself sign the will, or that his
name be affixed thereto by some other person in his presence and by his express direction.
Note that the phrase Por la testadora Anacleta Abellana was typewritten and above it was
the signature of Abello so in effect, when Abello only signed his name without writing that
he is doing so for Anacleta, he actually omitted the name of the testatrix. This is a substantial
violation of the law and would render the will invalid.
8. In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA, Probate
proceedings.

1. The testatrix was ill and confined to her house, the execution of the will taking place in the
sala where she lay upon a sofa.

2. Special proceedings for the legalization of a will, the Court of First Instance refused probate
on the ground that the instrument was not subscribed by the witnesses in the presence of the
testatrix and of each other as required by section 618 of the Code of Civil Procedure.

ISSUES RAISED:

1. As to whether the testatrix from where she lay could read what was written at the table and
the first witness, after signing, went away from the table.

2. the signature to the instrument is defective.

HELD :

the will must be signed by the testator, or by the testator's name written by some other person
in his presence, and by his express direction,"

The question presented in this case is, Are the words "Seora Maria Siason" her name written
by some other person?

it is contended that they form a part of the recital and not a signature, the only signature
being the names of the witnesses themselves.

In Guison vs. Concepcion (5 Phil. Rep., 551) it was held that there was no signature, although
the attestation clause which followed the will contained the name of the testatrix and was
thereafter signed by the witnesses.

The majority of the court, however, are of the opinion that the distinction is a tenable one
inasmuch as in the Concepcion will the name of the testatrix occurred only in the body of the
attestation clause, after the first signatures of the witnesses, whereas in this will it immediately
follows the testament itself and precedes the names of the witnesses.

WHEREFORE:

The decision of the court below is reversed, without costs, and that court is directed to admit
the instrument before it to probate as the last will of the testatrix.

CARSON, J., dissenting:

> a will should not be probated unless there has been strict compliance in its execution with
all the "requisites of a will" as prescribed in section 618 of the Code of Civil Procedure.
> This section provides that the will must be signed by the testator or that it must be signed
by the testator's name written by some other person.

> I think it is quite clear that the will in question was signed by the name of the witness written
at the request of the testatrix, but that it was not signed by the name of the testatrix written
by the witness.

> The name of the testatrix appeared in the attestation clause at the end of the will in the case
of Guison vs. Concepcion (5 Phil. Rep., 551), and it was placed there for precisely the same
purpose as it appears in the will under consideration; that is, in a recital of fact that the testatrix
had requested some one to attach her signature to the will.

We declared in that case, that the will could not be probated because the name of the testatrix
was not subscribed to the will in accordance with the provisions of section 618 of the Code of
Civil Procedure.

> I recognize that in the case under consideration a holding that the name of the testatrix is
not signed to the will in the manner prescribed by law would appear to defeat the intent of the
testatrix, and to invalidate the instrument for a failure to comply with a mere technical
formality.

But the same reasons of public policy which dictated the provisions of law prescribing
certain requisites without which no will is valid,

[G.R. No. 1641. January 19, 1906.]

GERMAN JABONETA, plaintiff-appellant, vs. RICARDO GUSTILO, ET AL., defendants-

appellees.

1.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
2.) The probate of the will of German Jaboneta mentioned that one of the witnesses did not
attach his signature in the will in the presence of another witness.
3.) Jaboneta asked Julio Javellana, Aniceto Jalbuena and Isabelo Jena to serve as witnesses
4.) According, the order of signing was in this manner: Jena Jalbuena Javellana
5.)However, during Jenas testimony, he mentioned that he is not categorically sure if Javellana
signed because as the latter was signing, he was about to go out of the room
6.) He merely said that Javellana had 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
ISSUE: Whether the presence requirement in witnessing a will was met given that one witness
did not fully witness the actual signing of another witness

RULING:
A.)YES, 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
B.) The generally accepted tests of presence are vision and mental apprehension 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.
C.) 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.

[G.R. No. L-36033. November 5, 1982.]

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIOTABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as
Judge of the Court of First Instance of Southern Leyte, (Branch III, Maasin), respondent.

1.) Dorotea Perez left a will. The will has two pages. On the first page, which contains the entire
testamentary dispositions, were the signatures of the three instrumental witnesses and that of
Dorotea Perez.
2.) The signatures of the three instrumental witnesses were on the left margin while Perez
signature was on the bottom.
3.) On the second page, which contains the attestation clause and the acknowledgement, were
the signatures of the three attesting witnesses and that of Dorotea Perez.
4.)The attestation clause failed to state the number of pages used in the will.
5.) Taboada petitioned for the admission to probate of the said will.
6.)The judge who handled the petition was Judge Ramon Pamatian. He denied the petition.
7.)Taboada filed a motion for reconsideration but Pamatian was not able to act on it because he
was transferred to another jurisdiction.
8.) The case was inherited by Judge Rosal who also denied the MFR on the grounds that a) that
the testator and the instrumental witnesses did not all sign on the left margin of the page as
prescribed by law; that the testator and the witnesses should have placed their signature in the
same place b) that the attestation clause failed to state the number of pages used in writing the
will
9.) this, according to Judge Rosal violated the requirement that the attestation clause shall
state the number of pages or sheets upon which the will is written, which requirement has been
held to be mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the property is
intended to be bequeathed.

ISSUE: Whether or not the will should be admitted to probate.

HELD: Yes. The law must be interpreted liberally.

A.) Further, there is substantial compliance with the law. 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.

B.) The failure to include in the attestation clause of the number of pages used in writing the
will would have been a fatal defect. But then again, the matter should be approached
liberally. There were only two pages in the will left by Perez. The first page contains the
entirety of the testamentary dispositions and 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.
Further, the acknowledgment itself states that This Last Will and Testament consists of
two pages including this page.

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

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

1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof.
2. It appears from the evidence that the testatrix died on September 12, 1958.
 3. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in
duplicates, an original and a carbon copy.
4. 2. On the day that it was subscribed and attested, the lawyer only brought the original
copy of the will while the carbon duplicate (unsigned) was left in Bulacan.
5. One of the witnesses failed to sign one of the pages in the original copy but admitted he
may have lifted 2 pages simultaneously instead when he signed the will.
6. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in
his presence.

Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a
page is sufficient to deny probate of the will

RULING:
A.) No, the failure to sign was entirely through pure oversight or mere inadvertence.
B.) Since the duplicated bore the required signatures, this proves that the omission was not
intentional.
C.) Even if the original is in existence, a duplicate may still be admitted to probate since the
original is deemed to be defective, then in law, there is no other will bu the duly signed
carbon duplicate and the same can be probated.
D.) The law should not be strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she has no control
of. Where the purpose of the law is to guarantee the identity of the testament and its
component pages, and there is no intentional or deliberate deviation existed.
Note that this ruling should not be taken as a departure from the rules that the will should be
signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.

[G.R. No. L-5826. April 29, 1953.]

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.
PELAGIO CAGRO, ET AL.,oppositors-appellants.

Facts:
1. The case is an appeal interposed by the oppositors from a decision of the CFI of Samar
which admitted to probate a will allegedly executed by Vicente Cagro who died in Pambujan,
Samar on Feb. 14, 1949.
2. The appellants insisted that the will is defective because the attestation was not signed by the
witnesses at the bottom although the page containing the same was signed by the witnesses on
the left hand margin.

3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform
substantially to law and may be deemed as their signatures to the attestation clause.

Issue: Whether or not the will is valid

HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the
execution of the will. It is 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 negatives their participation.

Moreover, the signatures affixed on the let hand margin is not substantial conformance to the
law. The said signatures were merely in conformance with the requirement that the will must be
signed on the left-hand margin of all its pages. If the attestation clause is unsigned by the 3
witnesses at the bottom, it would be easier to add clauses to a will on a subsequent occasion
and in the absence of the testator and any or all of the witnesses.

The probate of the will is denied.

You are here: Home 2013 June Case Digest: Cruz v. Villasor (54 SCRA 752)
CASE DIGEST: CRUZ V. VILLASOR (54 SCRA 752)

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.
Cruz v. Villasor
54 SCRA 752

FACTS:

1.) The CFI of Cebu allowed the probate of Valente Z. Cruzs last will and testament.
 2.) His surviving spouse, Agapita Cruz, opposed the allowance of the will alleging it was
executed through fraud, deceit, misrepresentation and undue influence;
3.) that the said instrument was execute without the testator having been fully informed of
the content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law.
4.) Agapita appealed the allowance of the will by certiorari.

ISSUE:

W/N the will was executed in accordance with law (particularly Articles 805 and 806 of the NCC,
the first requiring at least three credible witnesses to attest and subscribe to the will, and the
second requiring the testator and the witnesses to acknowledge the will before a notary public.).

HELD:

NO. A.) Of the three instrumental witnesses to the will, one of them (Atty. Teves) is at the same
time the Notary Public before whom the will was supposed to have been acknowledged.
B.)The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will.
C.) To acknowledge before means to avow (Javellana v. Ledesma; Castro v. Castro); to own as
genuine, to assent, to admit; and before means in front or preceding in space or ahead of.
D.) Consequently, if the third witness were the notary public himself, he would have to avow
assent, or admit his having signed the will in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear before the other to acknowledge his
participation in the making of the will.
E.) To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore,
the function of a notary public is, among others, to guard against any illegal or immoral
arrangement (Balinon v. De Leon). That function would defeated if the notary public were one of
the attesting instrumental witnesses.
F.)It would place him in inconsistent position and the very purpose of acknowledgment, which is
to minimize fraud, would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. There are others holding that his
signing merely as notary in a will nonetheless makes him a witness thereon. But these
authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue
herein because the notaries public and witnesses referred to in these cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. Here, the
notary public acted not only as attesting witness but also acknowledging witness, a situation not
envisaged by Article 805-06. Probate of will set aside.

[G.R. No. L-51546. January 28, 1980.]

JOSE ANTONIO GABUCAN, petitioner-appellant, vs. HON. JUDGE LUIS D. MANTA,
JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR, respondents-appellees.

1.)In 1977, Judge Luis Manta dismissed a probate proceeding because the notarial will
presented in the said case lacked a documentary stamp.
2.)Judge Manta ruled that the lack of of documentary stamp made the will inadmissible in
evidence and as such there is no will and testament to probate.
3.) Jose Gabucan, a party in the said case, thereafter affixed the required documentary stamp
and then moved for reconsideration but the judge refused to reconsider his ruling. Hence,
Gabucan filed a petition for mandamus to compel the judge to admit the notarial will.

ISSUE: Whether or not a notarial will presented in court which originally has no documentary
stamp may still be admitted after the required documentary stamp was affixed.

HELD: Yes. It is true that the law (the [old] Tax Code now Sec. 201 of R.A. 8424) requires a
notarial will to have a documentary stamp:

SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper
which is required by law to be stamped and which has been signed, issued, accepted, or
transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or
any record of transfer of the same be admitted or used in evidence in any court until the
requisite stamp or stamps shall have been affixed thereto and cancelled. xxx
Thus, a notarial will without a documentary stamp may not be admitted in evidence. However,
once the said documentary stamp is affixed, then the deficiency is cured and it can now be
admitted in evidence. The documentary stamp may be affixed at the time the taxable document
is presented in evidence.

[G.R. No. L-7179. June 30, 1955.]

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-
appellee, vs. DOA MATEALEDESMA, oppositor-appellant.
G.R. No. L-7179

Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased
Apolinaria Ledesma in July 1953.
2. This testament was deemed executed on May 1950 and May 1952. The contestant was
the sister and nearest surviving relative of the deceased.
3. She appealed from this decision alleging that the will were not executed in accordance
with law.
4. The testament was executed at the house of the testatrix.
5. One the other hand, the codicil was executed after the enactment of the New Civil Code
(NCC), and therefore had to be acknowledged before a notary public.
6. Now, the contestant, who happens to be one of the instrumental witnesses asserted that
after the codicil was signed and attested at the San Pablo hospital, that Gimotea (the
notary) signed and sealed it on the same occasion. Gimotea, however, said that he did
not do so, and that the act of signing and sealing was done afterwards.
7. One of the allegations was that the certificate of acknowledgement to the codicil was
signed somewhere else or in the office of the notary.
8. The ix and the witnesses at the hospital, was signed and sealed by the notary only when
he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence of the testator
and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of
the testator, the witnesses and the notary be accomplished in one single act. All that is required
is that every will must be acknowledged before a notary public by the testator and witnesses.
The subsequent signing and sealing is not part of the acknowledgement itself nor of the
testamentary act. Their separate execution out of the presence of the testator and the witnesses
cannot be a violation of the rule that testaments should be completed without interruption.

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

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

Facts:
1. Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she
knew an spoke. The other will was executed in December 1960 consisting of only one page,
and written in Tagalog. The witnesses to the 1960 will declared that the will was first read
'silently' by the testatrix before signing it. The probate court admitted the will.

2. The oppositors alleged that the as of December 1960, the eyesight of the deceased was so
poor and defective that she could not have read the provisions contrary to the testimony of the
witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC)
should apply.If the testator is blind or incapable of reading, he must be apprised of the contents
of the will for him to be able to have the opportunityto object if the provisions therein are not in
accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation to remove

her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained
mainly for viewing distant objects and not for reading. There was no evidence that her vision
improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her
own will. The admission of the will to probate is therefor erroneous.

[G.R. No. 74695. September 14, 1993.]

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO,petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding
Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and
BAYANI MA. RINO, respondents.
FACTS:

1.)The testator did not read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the 8-paged document, read the same aloud in the presence of the testator,
the 3 instrumental witnesses and the notary public.
2.)The latter 4 followed the reading with their own respective copies previously furnished them.
3.) Said will was admitted to probate.
4.) Later on, a codicil was executed, and by that time, the testator was already suffering from
glaucoma.
5.)But the disinheritance and revocatory clauses were unchanged.
6.) As in the case of the notarial will, the testator did not personally read the final draft of the
codicil.
7.)Instead, it was private respondent who read it aloud in his presence and in the presence of
the three instrumental witnesses (same as those of the notarial will) and the notary public who
followed the reading using their own copies.

ISSUE:

Was there substantial compliance to the reading of the will?

HELD:

A.)Article 808 not only applies to blind testators, but also to those who, for one reason or
another, are incapable of reading their wills. Hence, the will should have been read by the
notary public and an instrumental witness. However, the spirit behind the law was served
though the letter was not. In this case, there was substantial compliance. Substantial
compliance is acceptable where the purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of wills are intended to protect the testator from
all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy
the testamentary privilege.
B.)In this case, private respondent read the testator's will and codicil aloud in the presence of
the testator, his three instrumental witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the contents read corresponded with his
instructions. Only then did the signing and acknowledgement take place.

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,

AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO,
PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
FACTS:

1.)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 before 3 witnesses.
2.)He was assisted by his lawyer, Atty. Emilio Lumontad.
3.)In the will, it was declared that the testator was leaving by way of legacies and devises his
real and personal properties to several people all of whom do not appear to be related to the
testator.
4.) 4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and
testament, but numerous postponements pushed back the initial hearing of the probate court
regarding the will.
5.) On May 29, 1980, the testator passed away before his petition could finally be heard by the
probate court
6.) Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special
administrator of the testators estate.
7.) Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition for intestate proceedings. They also opposed the probate of the testators will
and the appointment of a special administrator for his estate.
8.) Benoni Cabrera died and was replaced by William Cabrera as special administrator and
gave an order that the testate proceedings for the probate of the will had to be heard and
resolved first.
9.) In the course of the proceedings, petitioners opposed to the allowance of the testators will
on the ground that on the alleged date of its execution, the testator was already in poor state of
health such that he could not have possibly executed the same. Also the genuineness of the
signature of the testator is in doubt.
10.) On the other hand, one of the attesting witnesses and the notary public testified that the
testator executed the will in question in their presence while he was of sound and disposing
mind and that the testator was in good health and was not unduly influenced in any way in the
execution of his will.
11.)Probate court then rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero.
12.) CA affirmed the probate courts decision stating that it substantially complies with Article
805. Hence this appeal.

ISSUE:

W/N the attestation clause in the will of the testator is fatally defective or can be cured under the
art. 809.

HELD:

No. It does not comply with the provisions of the law.

A.)Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged
before a notary public by the testator and the attesting witnesses. The attestation clause need
not be written in a language known to the testator or even to the attesting witnesses.
B.)It is a separate memorandum or record of the facts surrounding the conduct of execution and
once signed by the witnesses it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed.
The attestation clause, therefore, provides strong legal guaranties for the due execution of a will
and to insure the authenticity thereof.
C.)It is contended by petitioners that the attestation clause in the will failed to specifically state
the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. And the Court agrees.
D.) The attestation clause does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other.
E.) The phrase, and he has signed the same and every page thereof, on the space provided for
his signature and on the left hand margin, obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words as his last will and
testament.
Clearly lacking is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. That the absence of the statement required by law
is a fatal defect or imperfection which must necessarily result in the disallowance of the will that
is here sought to be probated.

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

IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF JOSE
VENZON. VALENTINA CUEVAS,petitioner-appellee, vs. PILAR ACHACOSO, oppositor-
appellant.

20. G.R. No. L-12190 August 30, 1958

CUEVAS VS ACHACOSO 88 PHIL 730

1.) On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the
deceased instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera
Venzon, his daughter. He named therein his widow as executrix of the will.
2.) On February 1, 1946, Valentina Cuevas filed a petition for the probate of said will.
3.) On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a
previous will executed by the deceased praying therein that, if the will submitted by the
widow be rejected, the other will be admitted to probate in lieu thereof.
4.) In the previous will there are other heirs instituted, among them petitioner Pilar
Achacoso.
5.) Pilar Achacoso objected to the probate of the second will executed by the deceased on
October 10, 1945. After due hearing, the court found that the latter will was executed in
accordance with law and ordered that it be admitted to probate.
6.) Pilar Achacoso took the case to the Court of Appeals, but the latter certified it to this
Court on the ground that it involves purely questions of law.
7.) The main error assigned refers to the alleged lack of attestation clause in the will under
consideration, or to the fact that, if there is such attestation clause, the same has not
 been signed by the instrumental witnesses, but by the testator himself, and it is claimed
that this defect has the effect of invalidating the will.
8.) The will in question, after reciting in separate paragraphs, and under correlative
numbers, the provisions of the will, winds up with the following clause:
9.) IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba,
Zambales, Philippines, this 10th day of October, 1945, in the presence of the three
witnesses, namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso
Cabal as instrumental witnesses to my signing; this testament is written in three (3)
sheets marked by letter "A", "B" and "C" consecutively on top of each sheet and upon
my request and in my presence and also in the presence of each of the aforesaid
instrumental witnesses, they also signed this testament already reffered to.

6.)I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well
as the testament itself have been signed by me as also each of the witnesses has also signed in
my presence and in the presence of each other.

The clause above quoted is the attestation clause reffered to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it
appears to be an attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, as to affect the validity of the will, it appearing that right
under the signature of the testator, there appear the signatures of the three instrumental
witnesses.

"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y

Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or
writing" (In re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not
merely attest to the signature of the testator but also to the proper execution of the will. The fact
that the three instrumental witnesses have signed the will immediately under the signature of
the testator, shows that they have in fact attested not only to the genuineness of his signature
but also to the due execution of the will as embodied in the attestation clause.

As was said in one case, "the object of the solemnities surrounding the execution of the wills is
to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be intrepreted in
such a way as to attain this premordial ends. But on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's will, must be disregarded."

e. Witnesses to wills

1. Who are competent

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, may be a witness to the execution of a will
mentioned in Article 805 of this Code. (n)

Art. 821. The following are disqualified from being witnesses to a will:

1. Any person not domiciled in the Philippines;

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

testimony. (n)

G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,

petitioner-appellant,

vs.

ILDEFONSO YAP, oppositor-appellee.

FACTS:
1.)On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
2.)On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the deceased.
3.) Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had
not left any will, nor executed any testament during her lifetime.
4.)After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge, refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.

ISSUE:
WON a holographic will be probated upon the testimony of witnesses who have allegedly seen it
and who declare that it was in the handwriting of the testator?

HELD:
NO. The court ruled that the execution and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses who have seen and/or read such will.
The loss of the holographic will entails the loss of the only medium of proof. Even if oral
testimony were admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies
that it fails to measure up to that clear and distinct proof required by Rule 77, sec. 6. 11.

G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.

FACTS:

1.)Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957. Petitioner submitted
for probate her holographic will, in which Maria Azaola was made the sole heir as against the
nephew, who is the defendant.
2. Only one witness, Francisoco Azaola, was presented to testify on the handwriting of the
testatrix. He testified that he had seen it one month, more or less, before the death of the
testatrix, as it was given to him and his wife; and that it was in the testatrixs handwriting.
3.) He presented the mortgage, the special power of the attorney, and the general power of
attorney, and the deeds of sale including an affidavit to reinforce his statement. Two residence
certificates showing the testatrixs signature were also exhibited for comparison purposes.
4.) The probate was opposed on the ground that (1) the execution of the will was procured by
undue and improper pressure and influence on the part of the petitioner and his wife, and (2)
that the testatrix did not seriously intend the instrument to be her last will, and that the same
was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956
as appears on the will.
5.) The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the signature are in
the writing of the testatrix, the probate being contested; and because the lone witness presented
did not prove sufficiently that the body of the will was written in the handwriting of the testatrix.
6.) Petitioner appealed, urging: first, that he was not bound to produce more than one witness
because the wills authenticity was not questioned; and second, that Article 811 does not
mandatorily require the production of three witnesses to identify the handwriting and signature
of a holographic will, even if its authenticity should be denied by the adverse party.
ISSUE:

W/N Article 811 of the Civil Code is mandatory or permissive.

HELD:

A.) Article 811 is merely permissive and not mandatory. Since the authenticity of the will was
not contested, petitioner was not required to produce more than one witness; but even if
the genuineness of the holographic will were contested, Article 811 can not be
interpreted to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied. Since no witness
may have been present at the execution of a holographic will, none being required by
law (Art. 810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of the proponent.
For it is not merely a question of finding and producing any three witnesses; they must
be witnesses who know the handwriting and signature of the testator and who can
declare (truthfully, of course, even if the law does not so express) that the will and the
signature are in the handwriting of the testator. There may be no available witness of
the testators hand; or even if so familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus
become an impossibility.
B.)This is the reason why the 2nd paragraph of Article 811 allows the court to resort to expert
evidence. The law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.
C.)What the law deems essential is that the court should be convinced of the wills authenticity.
Where the prescribed number of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those produced is convincing,
the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Facts:

1.)This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus.

2.)After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding
No. 81503 case was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas
de Jesus.

3.)On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. He then delivered
to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus. Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,
1973.

4.) Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-will addressed to her children and entirely written and signed in the handwriting of
the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my
will which I want to be respected although it is not written by a lawyer.

5.)testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and
Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will
of their deceased mother

6.)They further testified that their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by
their mother

7.)Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because (a) it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.

8.)August 24, 1973 - Judge Jose C. Colayco issued an order allowing the probate of the
holographic w/c he found to have been duly executed in accordance with law=
9.)Respondent Luz Roxas de Jesus filed a MR stating that the will was not dated as required by
Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day,
month and year of its execution and that this should be strictly complied with.

10.)December 10, 1973 Judge disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and year

ISSUE: WON the date "FEB./61 on the will is a valid compliance with the Article 810 of the Civil
Code

HELD: We agree with the petitioner.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.

Respondent Luz Henson says the will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution. The respondent further
contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly
construed.

RULING OF SC:

A.)the prevailing policy is to require satisfaction of the legal requirements in order to guard against
fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege

B.)If a Will has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to
probate

C.)Court found no evidence of bad faith and fraud in its execution nor was there any substitution of
Wills and Testaments

D.) As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established the Will should be allowed
under the principle of substantial compliance

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated
G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.

SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,

vs.

COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-

appellees.

FACTS:
1.)Melecio died leaving behind a parcel of land to his heirs.
2.)However, during probate proceedings, Jesus and Gaudencio filed an opposition on the
ground that the will has been extinguished by implication of law alleging that before Melecios
death, the land was sold to them evidenced by TCT No. 21178.
3.)Jesus eventually sold it to Navat.
4.)Trial court admitted the will to probate and declared the TCT null and void. However, the CA
on appeal denied probate on the ground that it was undated.

ISSUE:

W/N the alleged holographic will is dated, as provided for in Article 810 of CC.

HELD:
YES. The law does not specify a particular location where the date should be placed in the will.
The only requirements are that the date be in the will itself and executed in the hand of the
testator.
The intention to show March 17 1968 as the date of the execution is plain from the tenor of the
succeeding words of the paragraph. It states that this being in the month of March 17th day, in
the year 1968, and this decision and or instruction of mine is the matter to be followed. And the
one who made this writing is no other than Melecio Labrador, their father. This clearly shows
that this is a unilateral act of Melecio who plainly knew that he was executing a will.

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI,
Lipa City, and GREGORIO K. KALAW, respondents.
Facts:

1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of sister Natividad, filed a
peition for probate of the latter's holographic will in 1968. The will contained 2 alterations: a)
Rosa's name, designated as the sole heir was crossed out and instead "Rosario" was written
above it. Such was not initialed, b) Rosa's name was crossed out as sole executrix and
Gregorio's ma,e was written above it. This alteration was initialed by the testator.

2. Rosa contended that the will as first written should be given effect so that she would be the
sole heir. The lower court denied the probate due to the unauthenticated alterations and
additions.

Issue: Whether or not the will is valid

RULING: No, the will is voided or revoked since nothing remains in the will which could remain
valid as there was only one disposition in it. Such was altered by the substitution of the original
heir with another. To rule that the first will should be given effect is to disregard the testatrix'
change of mind. However, this change of mind cannot be given effect either as she failed to
authenticate it in accordance with Art. 814, or by affixing her full signature.

G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS,
respondents.
Dela Cerna v. Potot Digest

Facts:
1. The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint will where they
gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't have their own child.
When Bernabe died, the said will was probated in 1939.
2. Another petition for probate of the same will insofar as Gervasia was concerned was filed in
1952 but due to the failure of the petitioner (Manuela) to appears, the same was dismissed in
1954.
3. The CFI held the petition (Bernabe probate) to be null and void as it is contrary to law. While
the Court of Appeals reversed and held that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive as to the due execution of the will. Hence this
appeal.

Issue: Whether or not the will is valid

RULING: The Supreme Court affirmed the CA decision and held that Once a decree of probate
becomes final in accordance with the rules of procedure, it is res judicata. THe final decree of
probate entered in 1939 in the CFI of Cebu is conclusive as to the last will of Bernabe despite
the fact that even then the Civil Code already decreed the invalidity of joint wills. (There was an
error on the court but the decree has now become final.)
The probate court committed an error of law which should have been corrected on appeals but
which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final
decision. A decision which is binding upon the whole world.
Nevertheless, the probate in 1939 only affected the share of Bernabe and could not include the
disposition of the share of his wife which was still alive then, her properties were still not within
the jurisdiction of the court. Hence, the validity of the will with respect to her, must be on her
death, be re-examined and adjudicated de novo -- since a joint will is considered a separate will
of each testator.