succession notarial

8/11/2019 Succession Notarial

1/14

G.R. No. L-17304 May 22, 1922

In re will of Maria Roque y Paraiso, deceased.CEFERINO ALDABA,petitioner-appellee,vs.LUDOVICO ROQUE,opponent-appellant.

Lucero and Tengo for appellant.Vicente Platon for appellee.

VILLAMOR, J.:

It appears from the record of the case that on July 9, 1918, Maria Roque y Paraiso, the widow ofBruno Valenzuela, resident of the barrio of Mambog, municipality of Malolos, Province of Bulacan,executed her last will and testament in the Tagalog dialect with the help of Vicente Platon and in thepresence of three witnesses who signed the attestation clause and each of the four pages of thetestament. Maria Roque died on December 3, 1919, and when her will was filed in court for probate,it was contested by Ludovico Roque on the ground that it had not been prepared nor executed in

conformity with the requirements and solemnities prescribed by law.

After due proceedings had been had, the Court of First Instance of Bulacan by its decision renderedon February 27th of the following year, pronounced the testament in question valid, and ordered itsprobate, appointing Ceferino Aldaba as the administrator of the estate.

The errors assigned by the appellant are two, to wit: "That each and every folio of the said testamentis not paged correlatively in letter," and "that the said will lacks the attestation clause required bylaw."

We have examined document Exhibit 4 which is the will in question and we find at the end thereofthe following in Tagalog which translated into English reads:

This document expresses my last and spontaneous will, and is my last will and testament,which was drawn by the lawyer, Don Vicente Platon, at my direction, and everythingcontained in this testament has been ordained and directed by me to said Vicente Platon inorder that it might be embodied in this testament, and after this testament has been drawnup, I directed him to read it so that I might hear all its contents, and I have heard andunderstood all the contents of this document which is my last will, wherefore, and notknowing how to write, I have requested Don Vicente Platon to write and sign my name in mystead hereon; I declare that this testament is composed of four sheets, actually used, thatthe sheets are paged with the letter A, B, C, and d, and above my name I have placed thethumb mark of my right hand in the presence of the subscribing witnesses, and that all thewitnesses have signed in my presence and of each other here at Malolos, Bulacan, this 9thday of the month of July, 1918; and I also declare that at my request Don Vicente Platon has

written my name on the left margin of all pages of this testament, in the presence of thewitnesses, and all the witnesses have also signed all the pages of this testament on the leftmargin in my presence and that of each other.

X (Her thumb mark)MARIA ROQUE Y PARAISO,

Per VICENTE PLATON.(Sgd.) REGINO E. MENDOZA,

Witness.


2/14

(Sgd.) IGNACIO ANIAG,Witness.

(Sgd.) CEFERINO ALDABA.Witness.

In reality, it appears that it is the testatrix who makes the declaration about the points contained inthe above described paragraph; however, as the witnesses, together with the testatrix, have signedthe said declaration, we are of the opinion and so hold that the words above quoted of the testamentconstitute a sufficient compliance with the requirements of section 1 of Act No. 2645 which providesthat:

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

In regard to the other assignment of error, to wit, that each of the folios of the said testament is notpaged correlatively in letters "one." "two," "three," etc., but only with the letters A, B, C, etc., we areof the opinion that this method of indicating the paging of the testament is a compliance with thespirit of the law, since either one of the two ways above-mentioned indicates the correlation of thepages and serves to prevent the loss of any of them. It might be said that the object of the law inrequiring that the paging be made in letters is to make falsification more difficult, but it should benoted that since all the pages of the testament are signed at the margin by the testatrix and thewitnesses, the difficulty of forging the signatures in either case remains the same. In other words themore or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for theeasiness to forge the signature. And as in the present case there exists the guaranty of theauthenticity of the testament, consisting in the signatures on the left marging of the testament andthe paging thereof as declared in the attestation clause, the holding of this court in Abangan vs.

Abangan (40 Phil, 476), might as well be repeated:

The object of the solemnities surrounding the execution of wills is to close the door againstbad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truthand authenticity. Therefore the laws on this subject should be interpreted in such a way as toattain these primordial ends. But, on the other hand, also one must not lose sight of the factthat it is not the object of the law to restrain and curtail the exercise of the right to make awill. So when an interpretation already given assures such ends, any other interpretationwhatsoever, that adds nothing but demands more requisites entirely unnecesary, useless,and frustrative of the testator's last will, must be disregarded.

In that case the testament was written on one page, and the attestation clause on another. Neitherone of these pages was numbered in any way; and it was held:

In a will consisting of two sheets the first of which contains all the testamentary dispositionsand is signed at the bottom by the testator and three witnesses and the second contains onlythe attestation clause and is signed also at the bottom by the three witnesses, it is notnecessary that both sheets be further signed on their margings by the testator and thewitnesses, or be paged.

This means that, according to the particular case, the omission of paging does not necessarilyrender the testament invalid.


3/14

The law provides that the numbering of the pages should be in letters placed on the upper part of thesheet, but if the paging should be place din the lower part, would the testament be void for his solereason? We believe not. The law also provides that the testator and the witnesses must sign the leftmargin of each of the sheets of the testament; but if they should sign on the right margin, would thisfact also annul the testament? Evidently not. This court has already held inAvera vs. Garcia andRodriguez (42 Phil., 145):lvvph1n+

It is true that the statute says that the testator and the instrumental witnesses shall sign theirnames on the left margin of each and every page; and it is undeniable that the generaldoctrine is to the effect that all statutory requirements as to the execution of wills must befully complied with. The same doctrine is also deducible from cases heretofore decided bythis court

Still some details at times creep into legislative enactments which are so trivial that it wouldbe absurd to suppose that the Legislature could have attached any decisive importance tothem. The provision to the effect that the signatures of the testator and witnesses shall bewritten on the left margin of each page rather than on the right margin seems to be ofthis character. So far as concerns the authentication of the will, and of every part thereof, itcan make no possible different whether the names appear on the left or on the right margin,provided they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decidedMarch 23, 1918, not reported), this court declared a will void which was totally lacking in thesignatures required to be written on its several pages; and in the case of Re estate ofSaguinsin (41 Phil., 875), a will was likewise declared void which contained the necessarysignature on the margin of each left (folio), but not on the margin of each page containingwritten matter.

We do not desire to intimate that the numbering in letters is a requisite of no importance. But sinceits principal object is to give the correlation of the pages, we hold that this object may be attained bywriting "one." "two," "three," etc., well as by writing A, B, C, etc. Following, therefore, the viewmaintained by this court in the case ofAbangan vs. Abangan, supra, as regards the appreciation ofthe solemnities of a testament, we decide that the judgment appealed from must be, as is hereby,

affirmed with costs against the appellant. So ordered.

G.R. No. 157451 December 16, 2005

LETICIA VALMONTE ORTEGA,Petitioner,vs.JOSEFINA C. VALMONTE,Respondent.

D E C I S I O N

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of showing why itshould not be allowed. In the present case, petitioner has failed to discharge this burdensatisfactorily. For this reason, the Court cannot attribute any reversible error on the part of theappellate tribunal that allowed the probate of the will.

The Case


4/14

Before the Court is a Petition for Review1under Rule 45 of the Rules of Court, seeking to reverseand set aside the December 12, 2002 Decision2and the March 7, 2003 Resolution3of the Court of

Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SETASIDE. In its place judgment is rendered approving and allowing probate to the said last will and

testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitionerJosefina Valmonte. Let this case be remanded to the court a quo for further and concomitantproceedings."4

The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United Statesuntil he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and

he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which heowned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Twoyears after his arrival from the United States and at the age of 80 he wed Josefina who was then 28years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in alittle more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written downas COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2)pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page containsthe entire testamentary dispositions and a part of the attestation clause, and was signed at the endor bottom of that page by the testator and on the left hand margin by the three instrumentalwitnesses. The second page contains the continuation of the attestation clause and theacknowledgment, and was signed by the witnesses at the end of the attestation clause and again onthe left hand margin. It provides in the body that:

LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mindand memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church inaccordance with the rites and said Church and that a suitable monument to be erected and providedmy by executrix (wife) to perpetuate my memory in the minds of my family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portionof the follow-described properties, which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila,described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manilaregistered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and sharealike;
http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt1http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt1http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt2http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt2http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt3http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt3http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt3http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt4http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt4http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt4http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt4http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt3http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt2http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt1


5/14

b. 2-storey building standing on the above-described property, made of strong and mixed materialsused as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manilaalso covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of mydeceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savingsaccount bank book in USA which is in the possession of my nephew, and all others whatsoever andwherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament,and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City,Philippines.

"The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to givethem proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and formalities werenot complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in anadvance sate of senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the petitionerand/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrumentshould be his will at the time of affixing his signature thereto;

and she also opposed the appointment as Executrix of Josefina alleging her want of understandingand integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. FloroSarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio

Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and herdaughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house atSalingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthlypension and stayed at the said Makati residence. There were times though when to shave off onexpenses, the testator would travel alone. And it was in one of his travels by his lonesome self whenthe notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, whowere their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the


6/14

existence of the last will and testament of her husband, but just serendipitously found it in his attachecase after his death. It was only then that she learned that the testator bequeathed to her hisproperties and she was named the executrix in the said will. To her estimate, the value of propertyboth real and personal left by the testator is worth more or less P100,000.00. Josefina declared toothat the testator never suffered mental infirmity because despite his old age he went alone to themarket which is two to three kilometers from their home cooked and cleaned the kitchen and

sometimes if she could not accompany him, even traveled to Manila alone to claim his monthlypension. Josefina also asserts that her husband was in good health and that he was hospitalizedonly because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified that it wasin the first week of June 1983 when the testator together with the three witnesses of the will went tohis house cum law office and requested him to prepare his last will and testament. After the testatorinstructed him on the terms and dispositions he wanted on the will, the notary public told them tocome back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notarypublic kept it safely hidden and locked in his drawer. The testator and his witnesses returned on theappointed date but the notary public was out of town so they were instructed by his wife to comeback on August 9, 1983, and which they did. Before the testator and his witnesses signed theprepared will, the notary public explained to them each and every term thereof in Ilocano, a dialectwhich the testator spoke and understood. He likewise explained that though it appears that the willwas signed by the testator and his witnesses on June 15, 1983, the day when it should have beenexecuted had he not gone out of town, the formal execution was actually on August 9, 1983. Hereasoned that he no longer changed the typewritten date of June 15, 1983 because he did not likethe document to appear dirty. The notary public also testified that to his observation the testator wasphysically and mentally capable at the time he affixed his signature on the will.

"The attesting witnesses to the will corroborated the testimony of the notary public, and testified thatthe testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, QuezonCity and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for hisintended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return onJune 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to

come back instead on August 9, 1983 because of the absence of the notary public; that the testatorexecuted the will in question in their presence while he was of sound and disposing mind and that hewas strong and in good health; that the contents of the will was explained by the notary public in theIlocano and Tagalog dialect and that all of them as witnesses attested and signed the will in thepresence of the testator and of each other. And that during the execution, the testators wife,Josefina was not with them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her thereare other children from the siblings of Placido who are just as entitled to inherit from him. Sheattacked the mental capacity of the testator, declaring that at the time of the execution of the notarialwill the testator was already 83 years old and was no longer of sound mind. She knew whereof shespoke because in 1983 Placido lived in the Makati residence and asked Leticias family to live withhim and they took care of him. During that time, the testators physical and mental condition showeddeterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega forwhom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quoheld that [t]he evidence adduced, reduces theopposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of thewill; and


7/14

2. Mental incapacity of the testator at the time of the execution of the will as he was then in anadvanced state of senility

"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. TheCA upheld the credibility of the notary public and the subscribing witnesses who had acknowledgedthe due execution of the will. Moreover, it held that the testator had testamentary capacity at the timeof the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impoliteways"6did not make him a person of unsound mind.

Hence, this Petition.7

Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud ortrickery, and that Placido Valmonte never intended that the instrument should be his last will andtestament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed thesubject will."8

In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte.

This Courts Ruling

The Petition has no merit.

Main Issue:

Probate of a Wil l

At the outset, we stress that only questions of law may be raised in a Petition for Review underSection 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented duringthe trial may be examined and the factual matters resolved by this Court when, as in the instantcase, the findings of fact of the appellate court differ from those of the trial court.9
http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt5http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt5http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt5http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt6http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt6http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt6http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt7http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt7http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt7http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt8http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt8http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt8http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt9http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt9http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt9http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt9http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt8http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt7http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt6http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt5


8/14

The fact that public policy favors the probate of a will does not necessarily mean that every willpresented for probate should be allowed. The law lays down the procedures and requisites that mustbe satisfied for the probate of a will.10Verily, Article 839 of the Civil Code states the instances whena will may be disallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of itsexecution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary orof some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his willat the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud in itsexecution and challenging the testators state of mind at the time.

Existence of Fraud in the

Execution of a W il l

Petitioner does not dispute the due observance of the formalities in the execution of the will, but

maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly,she alleges that respondent, who is the testators wife and sole beneficiary, conspired with thenotary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedlyreflected in the varying dates of the execution and the attestation of the will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almostimmediately plunge into marriage with a man who [was] thrice her age x x x and who happened tobe [a] Fil-American pensionado,"11thus casting doubt on the intention of respondent in seeking theprobate of the will. Moreover, it supposedly "defies human reason, logic and commonexperience"12for an old man with a severe psychological condition to have willingly signed a last willand testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which thesubject of it is cheated. It may be of such character that the testator is misled or deceived as to thenature or contents of the document which he executes, or it may relate to some extrinsic fact, inconsequence of the deception regarding which the testator is led to make a certain will which, but forthe fraud, he would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at thetime of its execution.14The burden to show otherwise shifts to the proponent of the will only upon a
http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt10http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt10http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt10http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt11http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt11http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt11http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt12http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt12http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt12http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt13http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt13http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt13http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt14http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt14http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt14http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt14http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt13http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt12http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt11http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt10


9/14

showing of credible evidence of fraud.15Unfortunately in this case, other than the self-servingallegations of petitioner, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of awill.16That the testator was tricked into signing it was not sufficiently established by the fact that hehad instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and

disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking careof [the testator] in his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on thewill does not invalidate the document, "because the law does not even require that a [notarial] will x xx be executed and acknowledged on the same occasion."18More important, the will must besubscribed by the testator, as well as by three or more credible witnesses who must also attest to itin the presence of the testator and of one another.19Furthermore, the testator and the witnessesmust acknowledge the will before a notary public.20In any event, we agree with the CA that "thevariance in the dates of the will as to its supposed execution and attestation was satisfactorily andpersuasively explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and hiswitnesses were supposed to be in your office?

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?

A They did as of agreement but unfortunately, I was out of town.

x x x x x x x x x

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearingtherein. Was this the actual date when the document was acknowledged?

A Yes sir.

Q What about the date when the testator and the three witnesses affixed their respective signatureon the first and second pages of exhibit C?

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on the body of thedocument as well as the attestation clause?

A Because I do not like anymore to make some alterations so I put it in my own handwriting August9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:
http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt15http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt15http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt15http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt16http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt16http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt16http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt17http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt17http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt17http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt18http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt18http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt18http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt19http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt19http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt20http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt20http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt20http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt21http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt21http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt21http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt21http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt20http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt19http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt18http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt17http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt16http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt15


10/14

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in theacknowledgement it is dated August 9, 1983, will you look at this document and tell us thisdiscrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was firstweek of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty.

Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

x x x x x x x x x

A The reason why we went there three times is that, the first week of June was out first time. Wewent there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. Afterthat what they have talked what will be placed in the testament, what Atty. Sarmiento said was thathe will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there sowe were not able to sign it, the will. That is why, for the third time we went there on August 9 andthat was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of afraud. There was no showing that the witnesses of the proponent stood to receive any benefit fromthe allowance of the will. The testimonies of the three subscribing witnesses and the notary are
http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt22http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt22http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt22http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt22


11/14

credible evidence of its due execution.23Their testimony favoring it and the finding that it wasexecuted in accordance with the formalities required by law should be affirmed, absent any showingof ill motives.24

Capacityto Make a Wil l

In determining the capacity of the testator to make a will, the Civil Code gives the followingguidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of itsexecution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all hisreasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injuryor other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of theestate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to thecontrary.

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

According to Article 799, the three things that the testator must have the ability to know to beconsidered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) theproper objects of the testators bounty, and (3) the character of the testamentary act. Applying this

test to the present case, we find that the appellate court was correct in holding that Placido hadtestamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds ofproperty he owned, the extent of his shares in them and even their locations. As regards the properobjects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we havestated earlier, the omission of some relatives from the will did not affect its formal validity. Therebeing no showing of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind isAlsua-Betts v. CA,25which held thus:

"Between the highest degree of soundness of mind and memory which unquestionably carries with it

full testamentary capacity, and that degrees of mental aberration generally known as insanity oridiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it hasbeen held that mere weakness of mind, or partial imbecility from disease of body, or from age, willnot render a person incapable of making a will; a weak or feebleminded person may make a validwill, provided he has understanding and memory sufficient to enable him to know what he is about todo and how or to whom he is disposing of his property. To constitute a sound and disposing mind, itis not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. Ithas been held that testamentary incapacity does not necessarily require that a person shall actuallybe insane or of unsound mind."26
http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt23http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt23http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt23http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt24http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt24http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt24http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt25http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt25http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt25http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt26http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt26http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt26http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt26http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt25http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt24http://www.lawphil.net/judjuris/juri2005/dec2005/gr_157451_2005.html#fnt23


12/14

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court ofAppeals areAFFIRMED. Costs against petitioner.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instanceof Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J .:

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

The only question presented for determination, on which the decision of the case hinges, is whetherthe supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordancewith law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three

credible witnesses to attest and subscribe to the will, and the second requiring the testator and thewitnesses to acknowledge the will before a notary public.

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

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


13/14

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of theappellant that the last will and testament in question was not executed in accordance with law. Thenotary public before whom the will was acknowledged cannot be considered as the thirdinstrumental witness since he cannot acknowledge before himself his having signed the will. Toacknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in

space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk& Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New InternationalDictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he wouldhave to avow assent, or admit his having signed the will in front of himself. This cannot be donebecause he cannot split his personality into two so that one will appear before the other toacknowledge his participation in the making of the will. To permit such a situation to obtain would besanctioning a sheer absurdity.

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

Admittedly, there are American precedents holding that notary public may, in addition, act as awitness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely asnotary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See alsoTrenwith v.Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this

jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referredto aforecited cases merely acted as instrumental, subscribing attesting witnesses, and notas acknowledgingwitnesses. He the notary public acted not only as attesting witness but also

acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testatorand the witnesses. The notary public shall not be required to retain a copy of the willor file another with the office of the Clerk of Court. [Emphasis supplied]

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

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

Cost against the appellee.


14/14

succession notarial

Documents