wills cases 1st set

7/27/2019 Wills Cases 1st Set

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G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA,1petitioner, vs.COURT OF APPEALS AND MARIA MARLENA 2 COSCOLUELLA Y BELLEZAVILLACARLOS, respondents.

D E C I S I O N

PURISIMA,J.:

This is a petition for review of the decision of the Court of Appeals,3dated December 23,1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional

Trial Court in Bacolod City, and ordered the defendants-appellees (including hereinpetitioner), asheirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together withits fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. JorgeRabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, wasinstituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot No.1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted inSpecial Proceedings No. 4046 before the then Court of First Instance of Negros Occidental,contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadillaresident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of TitleNo. RT-4002 (10942), which is registered in my name according to the records of

the Register of Deeds of Negros Occidental.(b) That should Jorge Rabadilla die ahead of me, the aforementioned propertyand the rights which I shall set forth hereinbelow, shall be inherited andacknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and JorgeRabadilla shall have already received the ownership of the said Lot No. 1392 of the BacolodCadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the timethat the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall havethe obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza,Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar,until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the BacolodCadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have theobligation to still give yearly, the sugar as specified in the Fourth paragraph of histestament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one towhom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot,the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearlyONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each monthof December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic,until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, nothave respected my command in this my addition (Codicil), Maria Marlina Coscolluela yBelleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, andshall turn it over to my near desendants, (sic) and the latter shall then have the obligationto give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I furthercommand in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that

they will obey and follow that should they decide to sell, lease, mortgage, they cannotnegotiate with others than my near descendants and my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. JorgeRabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny(petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint,docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in BacolodCity, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of

subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions ofthe Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the RepublicPlanters Bank in disregard of the testatrix's specific instruction to sell, lease, ormortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred(100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) toplaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up tothe filing of the complaint as mandated by the Codicil, despite repeated demandsfor compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil whichprovided that in case of the sale, lease, or mortgage of the property, the buyer,lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs ofsugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to

reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, thecancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and theissuance of a new certificate of title in the names of the surviving heirs of the late AlejaBelleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed hisAnswer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff(private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact ofdefendant-heirs, arrived at an amicable settlement and entered into a Memorandum ofAgreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489will be delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, MaryRose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in AzucarSugar Central; and, this is considered compliance of the annuity as mentioned, and in thesame manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will becomplied in cash equivalent of the number of piculs as mentioned therein and which is asherein agreed upon, taking into consideration the composite price of sugar during eachsugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS(P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cashinstallment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable onor before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable onor before December of crop year 1989-90;
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For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable onor before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable onor before December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement exceptfor a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing thecomplaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action isprematurely filed as no cause of action against the defendants has as yet arose in favor ofplaintiff. While there maybe the non-performance of the command as mandated exactionfrom them simply because they are the children of Jorge Rabadilla, the title holder/owner ofthe lot in question, does not warrant the filing of the present complaint. The remedy at barmust fall. Incidentally, being in the category as creditor of the left estate, it is opined thatplaintiff may initiate the intestate proceedings, if only to establish the heirs of JorgeRabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSEDwithout prejudice.

SO ORDERED."6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of thetrial court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's

obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliversuch amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliancewith said obligation since 1985; and, the punitive consequences enjoined by both thecodicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of AlejaBelleza in case of such non-compliance, this Court deems it proper to order thereconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate ofAleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-openAleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No.1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by thecodicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No.1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered orderingdefendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392,together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way

to this Court via the present petition, contending that the Court of Appeals erred in orderingthe reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis ofparagraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. JorgeRabadilla is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordancewith Article 882 of the New Civil Code on modal institutions and in deviating from the soleissue raised which is the absence or prematurity of the cause of action. Petitioner maintainsthat Article 882 does not find application as there was no modal institution and the testatrixintended a mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to besubstituted by the testatrix's "near descendants" should the obligation to deliver the fruitsto herein private respondent be not complied with. And since the testatrix died single andwithout issue, there can be no valid substitution and such testamentary provision cannot begiven any effect.

The petitioner theorizes further that there can be no valid substitution for the reason thatthe substituted heirs are not definite, as the substituted heirs are merely referred to as

"near descendants" without a definite identity or reference as to who are the "neardescendants" and therefore, under Articles 8438 and 8459 of the New Civil Code, thesubstitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court ofAppeals deviated from the issue posed before it, which was the propriety of the dismissal ofthe complaint on the ground of prematurity of cause of action, there was no such deviation.

The Court of Appeals found that the private respondent had a cause of action against thepetitioner. The disquisition made on modal institution was, precisely, to stress that theprivate respondent had a legally demandable right against the petitioner pursuant tosubject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmittedfrom the moment of death of the decedent10and compulsory heirs are called to succeed byoperation of law. The legitimate children and descendants, in relation to their legitimateparents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his motherand sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded thelatter by operation of law, without need of further proceedings, and the successional rightswere transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights andobligations of a person, not extinguished by his death. Conformably, whatever rights Dr.

Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at thetime of his death. And since obligations not extinguished by death also form part of theestate of the decedent; corollarily, the obligations imposed by the Codicil on the deceasedDr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla,subject to the condition that the usufruct thereof would be delivered to the herein private

respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirssucceeded to his rights and title over the said property, and they also assumed his(decedent's) obligation to deliver the fruits of the lot involved to herein private respondent.Such obligation of the instituted heir reciprocally corresponds to the right of privaterespondent over the usufruct, the fulfillment or performance of which is now beingdemanded by the latter through the institution of the case at bar. Therefore, privaterespondent has a cause of action against petitioner and the trial court erred in dismissingthe complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is notapplicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla wasto be substituted by the testatrix's near descendants should there be noncompliance withthe obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place ofthe heir or heirs first instituted. Under substitutions in general, the testator may either (1)provide for the designation of another heir to whom the property shall pass in case the

original heir should die before him/her, renounce the inheritance or be incapacitated toinherit, as in a simple substitution,12or (2) leave his/her property to one person with theexpress charge that it be transmitted subsequently to another or others, as in afideicommissary substitution.13 The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir byreason of incapacity, predecease or renunciation. 14 In the case under consideration, theprovisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due topredecease, incapacity or renunciation, the testatrix's near descendants would substitutehim. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill theconditions imposed in the Codicil, the property referred to shall be seized and turned overto the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct.In a fideicommissary substitution, the first heir is strictly mandated to preservethe property and to transmit the same later to the second heir. 15 In the case underconsideration, the instituted heir is in fact allowed under the Codicil to alienate the propertyprovided the negotiation is with the near descendants or the sister of the testatrix. Thus, a
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very important element of a fideicommissary substitution is lacking; the obligation clearlyimposing upon the first heir the preservation of the property and its transmission to thesecond heir. "Without this obligation to preserve clearly imposed by the testator in his will,there is no fideicommissary substitution."16 Also, the near descendants' right to inherit fromthe testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadillaor his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. UnderArticle 863, the second heir or the fideicommissary to whom the property is transmittedmust not be beyond one degree from the first heir or the fiduciary. A fideicommissarysubstitution is therefore, void if the first heir is not related by first degree to the second

heir.17 In the case under scrutiny, the near descendants are not at all related to theinstituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla undersubject Codicil is in the nature of a modal institution and therefore, Article 882 of the NewCivil Code is the provision of law in point. Articles 882 and 883 of the New Civil Codeprovide:

Art. 882. The statement of the object of the institution or the application of the property leftby the testator, or the charge imposed on him, shall not be considered as a condition unlessit appears that such was his intention.

That which has been left in this manner may be claimed at once provided that theinstituted heir or his heirs give security for compliance with the wishes of the testator andfor the return of anything he or they may receive, together with its fruits and interests, if heor they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the precedingarticle cannot take effect in the exact manner stated by the testator, it shall be complied

with in a manner most analogous to and in conformity with his wishes.The institution of an heir in the manner prescribed in Article 882 is what is known in the lawof succession as aninstitucion sub modo or a modal institution. In a modal institution, thetestator states (1) the object of the institution, (2) the purpose or application of theproperty left by the testator, or (3) the charge imposed by the testator upon the heir. 18A"mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy ofhis rights to the succession.19On the other hand, in a conditional testamentary disposition,the condition must happen or be fulfilled in order for the heir to be entitled to succeed thetestator. The condition suspends but does not obligate; and the mode obligates but doesnot suspend.20To some extent, it is similar to a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that thetestatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewiseclearly worded that the testatrix imposed an obligation on the said instituted heir and hissuccessors-in-interest to deliver one hundred piculs of sugar to the herein privaterespondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, thetestatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution

as a devisee, dependent on the performance of the said obligation. It is clear, though, thatshould the obligation be not complied with, the property shall be turned over to thetestatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subjectCodicil is evidently modal in nature because it imposes a charge upon the instituted heirwithout, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligationimposed upon the heir should not be considered a condition unless it clearly appears fromthe Will itself that such was the intention of the testator. In case of doubt, the institutionshould be considered as modal and not conditional. 22

Neither is there tenability in the other contention of petitioner that the private respondenthas only a right of usufruct but not the right to seize the property itself from the institutedheir because the right to seize was expressly limited to violations by the buyer, lessee ormortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to theapplication of any of its provisions, the testator's intention is to be ascertained from thewords of the Will, taking into consideration the circumstances under which it was

made.23 Such construction as will sustain and uphold the Will in all its parts must beadopted.24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred(100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on theinstituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee shouldthey sell, lease, mortgage or otherwise negotiate the property involved. The Codicil furtherprovides that in the event that the obligation to deliver the sugar is not respected, MarlenaBelleza Coscuella shall seize the property and turn it over to the testatrix's neardescendants. The non-performance of the said obligation is thus with the sanction ofseizure of the property and reversion thereof to the testatrix's near descendants. Since the

said obligation is clearly imposed by the testatrix, not only on the instituted heir but also onhis successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment ofsaid obligation should equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement,the said obligation imposed by the Codicil has been assumed by the lessee, and whateverobligation petitioner had become the obligation of the lessee; that petitioner is deemed tohave made a substantial and constructive compliance of his obligation through theconsummated settlement between the lessee and the private respondent, and havingconsummated a settlement with the petitioner, the recourse of the private respondent isthe fulfillment of the obligation under the amicable settlement and not the seizure ofsubject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a persondisposes of his property, to take effect after his death.25Since the Will expresses themanner in which a person intends how his properties be disposed, the wishes and desires ofthe testator must be strictly followed. Thus, a Will cannot be the subject of a compromiseagreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals,dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as tocosts

SO ORDERED.
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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, RUPERTOABAPO, 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 theEstate of Mateo Caballero, respondents.

REGALADO,J.:

Presented for resolution by this Court in the present petition for review on certiorari is theissue of whether or not the attestation clause contained in the last will and testament of thelate Mateo Caballero complies with the requirements of Article 805, in relation to Article809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without anychildren and already in the twilight years of his life, executed a last will and testament athis residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer,Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of thatlast will. 1It was declared therein, among other things, that the testator was leaving by wayof legacies and devises his real and personal properties to Presentacion Gaviola, AngelAbatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, allof whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed asSpecial Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebuseeking the probate of his last will and testament. The probate court set the petition forhearing on August 20, 1979 but the same and subsequent scheduled hearings werepostponed for one reason to another. On May 29, 1980, the testator passed away before hispetition could finally be heard by the probate court. 3On February 25, 1981, BenoniCabrera, on of the legatees named in the will, sough his appointment as specialadministrator of the testator's estate, the estimated value of which was P24,000.00, and hewas so appointed by the probate court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituteda second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" anddocketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of FirstInstance of Cebu. On October 18, 1982, herein petitioners had their said petition intestateproceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of

First Instance of Cebu and opposed thereat the probate of the Testator's will and theappointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as BranchXV of the Regional Trial Court of Cebu, appointed William Cabrera as special administratoron June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of therecords of Special Proceeding No. 3965-R to the archives since the testate proceeding forthe probate of the will had to be heard and resolved first. On March 26, 1984 the case wasreraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where itremained until the conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appearedas oppositors and objected to the allowance of the testator's will on the ground that on thealleged date of its execution, the testator was already in the poor state of health such thathe could not have possibly executed the same. Petitioners likewise reiterated the issue asto the genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public

Atty. Filoteo Manigos, testified that the testator executed the will in question in theirpresence while he was of sound and disposing mind and that, contrary to the assertions ofthe oppositors, Mateo Caballero was in good health and was not unduly influenced in anyway in the execution of his will. Labuca also testified that he and the other witnessesattested and signed the will in the presence of the testator and of each other. The other twoattesting witnesses were not presented in the probate hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as thelast will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors

cannot overcome the positive testimonies of Atty. Filoteo Manigos andCipriano Labuca who clearly told the Court that indeed Mateo Caballeroexecuted the Last Will and Testament now marked Exhibit "C" onDecember 5, 1978. Moreover, the fact that it was Mateo Caballero whoinitiated the probate of his Will during his lifetime when he caused thefiling of the original petition now marked Exhibit "D" clearlyunderscores the fact that this was indeed his Last Will. At the start,counsel for the oppositors manifested that he would want the signatureof Mateo Caballero in Exhibit "C" examined by a handwriting expert ofthe NBI but it would seem that despite their avowal and intention forthe examination of this signature of Mateo Caballero in Exhibit "C",nothing came out of it because they abandoned the idea and insteadpresented Aurea Caballero and Helen Caballero Campo as witnessesfor the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will andTestament of Mateo Caballero and that it was executed in accordance

with all the requisites of the law.9

Undaunted by the said judgment of the probate court, petitioners elevated the case in theCourt of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question isnull and void for the reason that its attestation clause is fatally defective since it fails tospecifically state that the instrumental witnesses to the will witnessed the testator signingthe will in their presence and that they also signed the will and all the pages thereof in thepresence of the testator and of one another.

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

The question therefore is whether the attestation clause in questionmay be considered as having substantialy complied with therequirements of Art. 805 of the Civil Code. What appears in theattestation clause which the oppositors claim to be defective is "we docertify that the testament was read by him and the attestator, Mateo

Caballero, has published unto us the foregoing will consisting of THREEPAGES, including the acknowledgment, each page numberedcorrelatively in letters of the upper part of each page, as his Last Willand Testament, and he has signed the same and every page thereof,on the spaces provided for his signature and on the left hand margin inthe presence of the said testator and in the presence of each and all ofus (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need bepresented to indicate the meaning that the said will was signed by thetestator and by them (the witnesses) in the presence of all of them andof one another. Or as the language of the law would have it that thetestator signed the will "in the presence of the instrumental witnesses,and that the latter witnessed and signed the will and all the pagesthereof in the presence of the testator and of one another." If notcompletely or ideally perfect in accordance with the wordings of Art.805 but (sic) the phrase as formulated is in substantial compliance with

the requirement of the law."11


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Petitioners moved for the reconsideration of the said ruling of respondent court, but thesame was denied in the latter's resolution of January 14, 1992, 12hence this appeal nowbefore us. Petitioners assert that respondent court has ruled upon said issue in a mannernot in accord with the law and settled jurisprudence on the matter and are now questioningonce more, on the same ground as that raised before respondent court, the validity of theattestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after someprefatory observations which we feel should be made in aid of the rationale for ourresolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, withthe formalities prescribed by law, to control to a certain degree the disposition of his estateafter his death. 13Under the Civil Code, there are two kinds of wills which a testator mayexecute. 14 the first kind is the ordinary or attested will, the execution of which is governedby Articles 804 to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribedat the end thereof by the testator himself or by the testator's namewritten by some other person in his presence, and by his expressdirection, and attested and subscribed by three or more crediblewitnesses in the presence of the testator and of one another.

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

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

If the attestation clause is in a language not known to the witness, itshall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator andthe attesting witness.15hence it is likewise known as notarial will. Where the attestator isdeaf or deaf-mute, Article 807 requires that he must personally read the will, if able to doso. Otherwise, he should designate two persons who would read the will and communicateits contents to him in a practicable manner. On the other hand, if the testator is blind, thewill should be read to him twice; once, by anyone of the witnesses thereto, and then again,by the notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirelywritten, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,requires no attestation by witnesses. A common requirement in both kinds of will is thatthey should be in writing and must have been executed in a language or dialect known tothe testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not bewritten in a language or dialect known to the testator since it does not form part of thetestamentary disposition. Furthermore, the language used in the attestation clause likewiseneed not even be known to the attesting witnesses. 18The last paragraph of Article 805merely requires that, in such a case, the attestation clause shall be interpreted to saidwitnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnessescertify that the instrument has been executed before them and to the manner of theexecution the same. 19It is a separate memorandum or record of the facts surrounding theconduct of execution and once signed by the witnesses, it gives affirmation to the fact that

compliance with the essential formalities required by law has been observed. 20It is madefor the purpose of preserving in a permanent form a record of the facts that attended theexecution of a particular will, so that in case of failure of the memory of the attestingwitnesses, or other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which wouldresult in the invalidity of the will, 22should state (1) the number of the pages used uponwhich the will is written; (2) that the testator signed, or expressly caused another to sign,the will and every page thereof in the presence of the attesting witnesses; and (3) thatthe attesting witnesses witnessed the signing by the testator of the will and all itspages,and that saidwitnesses also signed the will and every page thereofin the presenceof the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which thewill is written is to safeguard against possible interpolation or omission of one or some of itspages and to prevent any increase or decrease in the pages; 23 whereas the subscription ofthe signature of the testator and the attesting witnesses is made for the purpose ofauthentication and identification, and thus indicates that the will is the very sameinstrument executed by the testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the dueexecution of the will as embodied in the attestation clause. 25 The attestation clause,therefore, provide strong legal guaranties for the due execution of a will and to insure theauthenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it needbe signed only by them. 27Where it is left unsigned, it would result in the invalidation of thewill as it would be possible and easy to add the clause on a subsequent occasion in theabsence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiring theformalities to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisionson the law on wills in this Project consists in the liberalization of themanner of their execution with the end in view of giving the testatormore freedom in expressing his last wishes, but with sufficientsafeguards and restrictions to prevent the commission of fraud and theexercise of undue and improper pressure and influence upon thetestator.

This objective is in accord with the modern tendency with respect tothe formalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it iscomprised of three sheets all of which have been numbered correlatively, with the leftmargin of each page thereof bearing the respective signatures of the testator and the threeattesting witnesses. The part of the will containing the testamentary dispositions is

expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator.The attestation clause in question, on the other hand, is recited in the English language andis likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it isthe proverbial bone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postaladdresses appear on the Opposite of our respective names, we dohereby certify that the Testament was read by him and the testator,MATEO CABALLERO; has published unto us the foregoing Willconsisting of THREE PAGES, including the Acknowledgment, each pagenumbered correlatively in the letters on the upper part of each page,as his Last Will and Testament and he has the same and every pagethereof, on the spaces provided for his signature and on the left handmargin, in the presence of the said testator and in the presence ofeach and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribeto the will in the presence of the testator and of one another. "Attestation" and


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"subscription" differ in meaning. Attestation is the act of senses, while subscription is theact of the hand. The former is mental, the latter mechanical, and to attest a will is to knowthat it was published as such, and to certify the facts required to constitute an actual andlegal publication; but to subscribe a paper published as a will is only to write on the samepaper the names of the witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator'sexecution of the will in order to see and take note mentally that those things are donewhich the statute requires for the execution of a will and that the signature of the testatorexists as a fact. On the other hand, subscription is the signing of the witnesses' names uponthe same paper for the purpose of identification of such paper as the will which wasexecuted by the testator. As it involves a mental act, there would be no means, therefore,of ascertaining by a physical examination of the will whether the witnesses had indeedsigned in the presence of the testator and of each other unless this is substantiallyexpressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention ofthe express requirements of the third paragraph of Article 805 of the Civil Code forattestation clauses, fails to specifically state the fact that the attesting witnesses thetestator 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 eachother. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed isthe fact that while it recites that the testator indeed signed the will and all its pages in thepresence of the three attesting witnesses and states as well the number of pages that wereused, the same does not expressly state therein the circumstance that said witnessessubscribed their respective signatures to the will in the presence of the testator and of each

other.The phrase "and he has signed the same and every page thereof, on the spaces providedfor his signature and on the left hand margin," obviously refers to the testator and not theinstrumental witnesses as it is immediately preceded by the words "as his Last Will and

Testament." On the other hand, although the words "in the presence of the testator and inthe presence of each and all of us" may, at first blush, appear to likewise signify and referto the witnesses, it must, however, be interpreted as referring only to the testator signingin the presence of the witnesses since said phrase immediately follows the words "he hassigned the same and every page thereof, on the spaces provided for his signature and onthe left hand margin." What is then clearly lacking, in the final logical analysis , is thestatement that the witnesses signed the will and every page thereof in the presence of thetestator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defector imperfection which must necessarily result in the disallowance of the will that is heresought to be admitted to probate. Petitioners are correct in pointing out that theaforestated defect in the attestation clause obviously cannot be characterized as merely

involving the form of the will or the language used therein which would warrant theapplication of the substantial compliance rule, as contemplated in the pertinent provisionthereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue andimproper pressure and influence, defects and imperfections inthe form of attestation or in the language used therein shall not renderthe will invalid if it is not proved that the will was in fact executed andattested in substantial compliance with all the requirements of article805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof andat the left margin of each page by the three attesting witnesses, it certainly cannot beconclusively inferred therefrom that the said witness affixed their respective signatures inthe presence of the testator and of each other since, as petitioners correctly observed, thepresence of said signatures only establishes the fact that it was indeed signed, but it doesnot prove that the attesting witnesses did subscribe to the will in the presence of the

testator and of each other. The execution of a will is supposed to be one act so that where

the testator and the witnesses sign on various days or occasions and in variouscombinations, the will cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809,wherein he urged caution in the application of the substantial compliance rule therein, iscorrect and should be applied in the case under consideration, as well as to future caseswith similar questions:

. . . The rule must be limited to disregarding those defects that can besupplied by an examination of the will itself: whether all the pages areconsecutively numbered; whether the signatures appear in each and

every page; whether the subscribing witnesses are three or the willwas notarized. All theses are facts that the will itself can reveal, anddefects or even omissions concerning them in the attestation clausecan be safely disregarded. But the total number of pages, and whetherall persons required to sign did so in the presence of each other mustsubstantially appear in the attestation clause, being the only checkagainst perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only bewith respect to the form of the attestation or the language employed therein. Such defectsor imperfections would not render a will invalid should it be proved that the will was reallyexecuted and attested in compliance with Article 805. In this regard, however, the mannerof proving the due execution and attestation has been held to be limited to merely anexamination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits thefact that the attesting witnesses signed each and every page of the will in the presence of

the testator and of each other.

35

In such a situation, the defect is not only in the form orlanguage of the attestation clause but the total absence of a specific element required byArticle 805 to be specifically stated in the attestation clause of a will. That is precisely thedefect complained of in the present case since there is no plausible way by which we canread into the questioned attestation clause statement, or an implication thereof, that theattesting witness did actually bear witness to the signing by the testator of the will and allof its pages and that said instrumental witnesses also signed the will and every pagethereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or reliedon by respondents since it presupposes that the defects in the attestation clause can becured or supplied by the text of the will or a consideration of matters apparent therefromwhich would provide the data not expressed in the attestation clause or from which it maynecessarily be gleaned or clearly inferred that the acts not stated in the omitted textualrequirements were actually complied within the execution of the will. In other words,defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the

attesting witnesses can be supplied by only extrinsic evidence thereof, since an overallappreciation of the contents of the will yields no basis whatsoever from with such facts maybe plausibly deduced. What private respondent insists on are the testimonies of hiswitnesses alleging that they saw the compliance with such requirements by theinstrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsicevidence to prove the same and would accordingly be doing by the indirection what in lawhe cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of viewsas to which manner of interpretation should be followed in resolving issues centering oncompliance with the legal formalities required in the execution of wills. The formalrequirements were at that time embodied primarily in Section 618 of Act No. 190, the Codeof Civil Procedure. Said section was later amended by Act No. 2645, but the provisionsrespecting said formalities found in Act. No. 190 and the amendment thereto werepractically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in thecase ofAbangan vs. Abangan, 36 where it was held that the object of the solemnities


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surrounding the execution of wills is to close the door against bad faith and fraud, to avoidsubstitution of wills and testaments and to guarantee their truth and authenticity.

Therefore, the laws on this subject should be interpreted in such a way as to attain theseprimordial ends. Nonetheless, it was also emphasized that one must not lose sight of thefact that it is not the object of the law to restrain and curtail the exercise of the right tomake a will, hence when an interpretation already given assures such ends, any otherinterpretation whatsoever that adds nothing but demands more requisites entirelyunnecessary, useless and frustrative of the testator's last will, must be disregarded. Thesubsequent cases ofAvera vs. Garcia, 37Aldaba vs. Roque, 38Unson vs. Abella, 39Pecson vs.Coronel, 40Fernandez vs. Vergel de Dios, et al. , 41 and Nayve vs. Mojal, et al. 42 all adhered

to this position.The other view which advocated the rule that statutes which prescribe the formalities thatshould be observed in the execution of wills are mandatory in nature and are to be strictlyconstrued was followed in the subsequent cases ofIn the Matter of the Estate ofSaguinsin , 43In re Will of Andrada, 44Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al. , 48 provided the Court with the occasion to clarify the seeminglyconflicting decisions in the aforementioned cases. In said case ofGumban, the attestationclause had failed to state that the witnesses signed the will and each and every pagethereof on the left margin in the presence of the testator. The will in question wasdisallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginningwith (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque

vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48Phil., 506). Appellee counters with the citation of a series of casesbeginning withAbangan vs. Abangan ([1919], 40 Phil., 476), continuingthroughAldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs.Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs.Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our task isto contrast and, if possible, conciliate the last two decisions cited byopposing counsel, namely, those ofSano vs. Quintana,supra,and Nayve vs. Mojal and Aguilar, supra.

In the case ofSano vs. Quintana, supra, it was decided that anattestation clause which does not recite that the witnesses signed thewill and each and every page thereof on the left margin in thepresence of the testator is defective, and such a defect annuls the will.

The case ofUy Coque vs. Sioca, supra, was cited, but the caseofNayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast,is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it washeld that the attestation clause must estate the fact that the testatorand the witnesses reciprocally saw the signing of the will, for such anact cannot be proved by the mere exhibition of the will, if it is notstated therein. It was also held that the fact that the testator and thewitnesses signed each and every page of the will can be proved also bythe mere examination of the signatures appearing on the documentitself, and the omission to state such evident facts does not invalidatethe will.

It is a habit of courts to reaffirm or distinguish previous cases; seldomdo they admit inconsistency in doctrine. Yet here, unless aidedimpossible to reconcile the Mojal and Quintana decisions. They arefundamentally at variance. If we rely on one, we affirm. If we rely onthe other, we reverse.

In resolving this puzzling question of authority, three outstandingpoints may be mentioned. In the first place, the Mojal, decision was

concurred in by only four members of the court, less than a majority,with two strong dissenting opinions; the Quintana decision wasconcurred in by seven members of the court, a clear majority, with oneformal dissent. In the second place, the Mojal decision waspromulgated in December, 1924, while the Quintana decision waspromulgated in December, 1925; the Quintana decision was thussubsequent in point of time. And in the third place, the Quintanadecision is believed more nearly to conform to the applicableprovisions of the law.

The right to dispose of property by will is governed entirely by statute.The law of the case is here found in section 61 of the Code of CivilProcedure as amended by Act No. 2645, and in section 634 of thesame Code, as unamended. It is in part provided in section 61, asamended that "No will . . .shall be valid . . . unless . . .." It is furtherprovided in the same section that "The attestation shallstate thenumber of sheets or pages used, upon which the will is written, and thefact that the testator signed the will and every page thereof, or causedsome other person to write his name, under his express direction, inthe presence of three witnesses, and the latter witnessed and signedthe will and all pages thereof in the presence of the testator and ofeach other." Codal section 634 provides that "The will shall bedisallowed in either of the following case: 1. Ifnotexecutedand attested as in this Act provided." The law not alone carefullymakes use of the imperative, but cautiously goes further and makesuse of the negative, to enforce legislative intention. It is not within theprovince of the courts to disregard the legislative purpose soemphatically and clearly expressed.

We adopt and reaffirm the decision in the case ofSano vs.Quintana, supra, and, to the extent necessary, modify the decision inthe case ofNayve vs. Mojal and Aguilar, supra. (Emphases in theoriginal text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court thatonce more appeared to revive the seeming diversity of views that was earlier threshed outtherein. The cases ofQuinto vs. Morata, 49Rodriguez vs. Alcala, 50Enchevarria vs.Sarmiento, 51 and Testate Estate of Toray52 went the way of the ruling as restatedin Gumban. But De Gala vs. Gonzales, et al., 53Rey vs. Cartagena, 54De Ticson vs. DeGorostiza, 55Sebastian vs. Panganiban, 56Rodriguez vs. Yap, 57Grey vs. Fabia, 58Leynez vs.Leynez, 59Martir vs. Martir , 60Alcala vs. De Villa, 61Sabado vs.Fernandez, 62Mendoza vs. Pilapil, 63and Lopez vs. Liboro, 64 veered away from the strictinterpretation rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniableinclination towards a liberal construction, recommended the codification of the substantialcompliance rule, as it believed this rule to be in accord with the modern tendency to give aliberal approach to the interpretation of wills. Said rule thus became what is now Article 809of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and thatis, in accordance with the formalities prescribed by Section 618 of theCode of Civil Procedure as amended by Act No. 2645. The SupremeCourt of the Philippines had previously upheld the strict compliancewith the legal formalities and had even said that the provisions ofSection 618 of the Code of Civil Procedure, as amended regarding thecontents of the attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil.405). These decisions necessarily restrained the freedom of thetestator in disposing of his property.

However, in recent years the Supreme Court changed its attitude andhas become more liberal in the interpretation of the formalities in the


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execution of wills. This liberal view is enunciated in the casesofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez,G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995,

June 21, 1940; andAlcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it haspractically gone back to the original provisions of Section 618 of theCode of Civil Procedure before its amendment by Act No. 2645 in theyear 1916. To turn this attitude into a legislative declaration and toattain the main objective of the proposed Code in the liberalization ofthe manner of executing wills, article 829 of the Project isrecommended, which reads:

"Art. 829. In the absence of bad faith, forgery, orfraud, or undue and improper pressure andinfluence, defects and imperfections in the form ofattestation or in the language used therein shallnot render the will invalid if it is proved that thewill was in fact executed and attested insubstantial compliance with all the requirementsof article 829." 65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle ordifficulty, nor does it open the door to serious consequences. The later decisions do tell uswhen and where to stop; they draw the dividing line with precision. They do not allowevidence aliunde to fill a void in any part of the document or supply missing details thatshould appear in the will itself. They only permit a probe into the will, an exploration into itsconfines, to ascertain its meaning or to determine the existence or absence of the requisite

formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banishany fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can besupplied by an examination of the will itself, without the need of resorting to extrinsicevidence, will not be fatal and, correspondingly, would not obstruct the allowance toprobate of the will being assailed. However, those omissions which cannot be suppliedexcept by evidence aliunde would result in the invalidation of the attestation clause andultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondentcourt is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed toforthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the LastWill and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (Inthe matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter dulyproceed with the settlement of the estate of the said decedent.SO ORDERED.

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIOGARCIA, petitioner,vs.

JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of AnteroMercado dated January 3, 1943. The will is written in the Ilocano dialect and contains thefollowing attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament

of Antero Mercado was signed by himself and also by us below his name and ofthis 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 inIlocano dialect which is spoken and understood by the testator, and it bears thecorresponding number in letter which compose of three pages and all them weresigned in the presence of the testator and witnesses, and the witnesses in thepresence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, onethousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDACORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name ofAntero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier.Antero Mercado is alleged to have written a cross immediately after his name. The Court ofAppeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled thatthe attestation clause failed (1) to certify that the will was signed on all the left margins ofthe three pages and at the end of the will by Atty. Florentino Javier at the express requestof the testator in the presence of the testator and each and every one of the witnesses; (2)to certify that after the signing of the name of the testator by Atty. Javier at the former'srequest said testator has written a cross at the end of his name and on the left margin of

the three pages of which the will consists and at the end thereof; (3) to certify that thethree witnesses signed the will in all the pages thereon in the presence of the testator andof each other.

In our opinion, the attestation clause is fatally defective for failing to state that AnteroMercado caused Atty. Florentino Javier to write the testator's name under his expressdirection, as required by section 618 of the Code of Civil Procedure. The herein petitioner(who is appealing by way of certiorari from the decision of the Court of Appeals) argues,however, that there is no need for such recital because the cross written by the testatorafter his name is a sufficient signature and the signature of Atty. Florentino Javier is asurplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, thelatter having been held sufficient by this Court in the cases of De Gala vs. Gonzales andOna, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of AnteroMercado or even one of the ways by which he signed his name. After mature reflection, weare not prepared to liken the mere sign of the cross to a thumbmark, and the reason isobvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital inthe attestation clause as to the signing of the will by the testator in the presence of thewitnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. Soordered.


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G.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEAPEREZ, (deceased): APOLONIO TABOADA, petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte,(Branch III, Maasin),respondent.

GUTIERREZ, JR.J.:

This is a petition for review of the orders issued by the Court of First Instance of SouthernLeyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petitionfor Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", whichdenied the probate of the will, the motion for reconsideration and the motion forappointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached thealleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayandialect, the will consists of two pages. The first page contains the entire testamentarydispositions and is signed at the end or bottom of the page by the testatrix alone and at theleft hand margin by the three (3) instrumental witnesses. The second page which containsthe attestation clause and the acknowledgment is signed at the end of the attestationclause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement ofpublication, the trial court commissioned the branch clerk of court to receive thepetitioner's evidence. Accordingly, the petitioner submitted his evidence and presentedVicente Timkang, one of the subscribing witnesses to the will, who testified on its

genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned orderdenying the probate of the will of Dorotea Perez for want of a formality in its execution. Inthe same order, the petitioner was also required to submit the names of the intestate heirswith their corresponding addresses so that they could be properly notified and couldintervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestationand/or motion, ex partepraying for a thirty-day period within which to deliberate on anystep to be taken as a result of the disallowance of the will. He also asked that the ten-dayperiod required by the court to submit the names of intestate heirs with their addresses beheld in abeyance.

The petitioner f iled a motion for reconsideration of the order denying the probate of thewill. However, the motion together with the previous manifestation and/or motion could notbe acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new stationat Pasig, Rizal. The said motions or incidents were still pending resolution when respondent

Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as themanifestation and/or motion filed ex parte. In the same order of denial, the motion for theappointment of special administrator was likewise denied because of the petitioner's failureto comply with the order requiring him to submit the names of' the intestate heirs and theiraddresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that thetestatrix and all the three instrumental and attesting witnesses sign at the end of the willand in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the endthereof by the testator himself or by the testator's name written bysome other person in his presence, and by his express direction, andattested and subscribed by three or more credible witnesses in thepresence of the testator and of one another.

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

The attestation shall state the number of pages used upon which thewill is written, and the fact that the testator signed the will and everypage thereof, or caused some other person to write his name, underhis express direction, in the presence of the instrumental witnesses,and that the lacier witnesses and signed the will and the pages thereofin the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, itshall be interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for anotarial will to be valid, it is not enough that only the testatrix signs at the "end" but an thethree subscribing witnesses must also sign at the same place or at the end, in the presenceof the testatrix and of one another because the attesting witnesses to a will attest notmerely the will itself but also the signature of the testator. It is not sufficient compliance tosign the page, where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not makeit a condition precedent or a matter of absolute necessity for the extrinsic validity of thewig that the signatures of the subscribing witnesses should be specifically located at theend of the wig after the signature of the testatrix. He contends that it would be absurd thatthe legislature intended to place so heavy an import on the space or particular locationwhere the signatures are to be found as long as this space or particular location whereinthe signatures are found is consistent with good faith and the honest frailties of humannature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed atits end by the testator himself or by the testator's name written by another person in hispresence, and by his express direction, and attested and subscribed by three or morecredible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists inwitnessing the testator's execution of the will in order to see and take note mentally thatthose things are, done which the statute requires for the execution of a will and that thesignature of the testator exists as a fact. On the other hand, subscription is the signing ofthe witnesses' names upon the same paper for the purpose of Identification of such paperas the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that thewill in this case was subscribed in a manner which fully satisfies the purpose ofIdentification.

The signatures of the instrumental witnesses on the left margin of the first page of the willattested not only to the genuineness of the signature of the testatrix but also the dueexecution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from theusual forms should be ignored, especially where the authenticity of the will is not assailed.(Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating


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the provisions on the law on wills in this project consists in the liberalization of the mannerof their execution with the end in view of giving the testator more freedom in expressinghis last wishes but with sufficient safeguards and restrictions to prevent the commission offraud and the exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency in respect to the formalities in theexecution of a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not forthe defect in the place of signatures of the witnesses, he would have found the testimonysufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the presentcase when the instrumental witnesses signed at the left margin of the sole page whichcontains all the testamentary dispositions, especially so when the will was properlyIdentified by subscribing witness Vicente Timkang to be the same will executed by thetestatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed tostate the number of pages used in writing the will. This would have been a fatal defect wereit not for the fact that, in this case, it is discernible from the entire wig that it is really andactually composed of only two pages duly signed by the testatrix and her instrumentalwitnesses. As earlier stated, the first page which contains the entirety of the testamentarydispositions is signed by the testatrix at the end or at the bottom while the instrumentalwitnesses signed at the left margin. The other page which is marked as "Pagina dos"comprises the attestation clause and the acknowledgment. The acknowledgment itselfstates that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the followingobservations with respect to the purpose of the requirement that the attestation clausemust state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, asamended by Act No. 2645, which requires that the attestation clauseshall state the number of pages or sheets upon which the win iswritten, which requirement has been held to be mandatory as aneffective safeguard against the possibility of interpolation or omissionof some of the pages of the will to the prejudice of the heirs to whomthe property is intended to be bequeathed (In re will of Andrada, 42Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems tobe that the attestation clause must contain a statement of the numberof sheets or pages composing the will and that if this is missing or isomitted, it will have the effect of invalidating the will if the deficiencycannot be supplied, not by evidence aliunde, but by a consideration orexamination of the will itself. But here the situation is different. While

the attestation clause does not state the number of sheets or pagesupon which the will is written, however, the last part of the body of thewill contains a statement that it is composed of eight pages, whichcircumstance in our opinion takes this case out of the rigid rule ofconstruction and places it within the realm of similar cases where abroad and more liberal view has been adopted to prevent the will ofthe testator from being defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similarliberal approach:

... Impossibility of substitution of this page is assured not only (sic) thefact that the testatrix and two other witnesses did sign the defectivepage, but also by its bearing the coincident imprint of the seal of thenotary public before whom the testament was ratified by testatrix andall three witnesses. The law should not be so strictly and literallyinterpreted as to penalize the testatrix on account of the inadvertence

of a single witness over whose conduct she had no control where the

purpose of the law to guarantee the Identity of the testament and itscomponent pages is sufficiently attained, no intentional or deliberatedeviation existed, and the evidence on record attests to the funobservance of the statutory requisites. Otherwise, as stated in Vda. deGil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision onreconsideration) 'witnesses may sabotage the will by muddling orbungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent courtwhich denied the probate of tile will, the motion for reconsideration of the denial of probate,and the motion for appointment of a special administrator are set aside. The respondentcourt is ordered to allow the probate of the wig and to conduct further proceedings inaccordance with this decision. No pronouncement on costs.

SO ORDERED.


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G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,vs.THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.

PUNO,J.:

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Courtof appeals 1in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicilexecuted by Calibia Lingdan Bulanglang, who died on March 20, 1976.

The records show that decedent left behind nine thousand pesos (P9,000.00) worth ofproperty. She also left a Last Will and Testament, dated October 30, 1972, and a Codicilthereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent. Theywere also signed by three (3) attesting witnesses each, and acknowledged before Tomas A.

Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before theRTC of Bontoc, Mt. Province, Br. 36. 2He died during the pendency of the proceedings, andwas duly substituted by petitioner. Private respondents, relatives of decedent, opposed thePetitioner filed by Calde, on the following grounds: that the will and codicil were written inIlocano, a dialect that decedent did not know; that decedent was mentally incapacitated toexecute the two documents because of her advanced age, illness and deafness; thatdecedents thumbmarks were procured through fraud and undue influence; and that thecodicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and allowingdecedents will and its codicil. The decision was appealed to and reversed by the

respondent Court of Appeals. It held:. . . (T)he will and codicil could pass the safeguards under Article 805 ofthe New Civil Code but for one crucial factor of discrepancy in the colorof ink when the instrumental witnesses affixed their respectivesignatures. When subjected to cross-examination, Codcodio Nacnas aswitness testified as follows:

Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1",Exhibit "B" and "B-1" which is the testament was passedaround all of you so that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign Iwithdraw the question. How did Calibia Lingdan Bulanglangsign the last will and testament?

A She asked Judge Tolete the place where she will affix herthumbmark so Judge Tolete directed her hand or her thumbto her name.

Q After she signed, who was the second to sign allegedly allof you there present?

A Jose Becyagen.

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

A Ballpen.

Q And after Jose Becyagen signed his name with the ballpen,who was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen,Exhibit "B" and "B-1" plus the ballpen which used to sign sothat you could sign your name, is that correct?

A Yes, sir.

Q And then after you signed, who was the next to sign thedocument, Exhibit "B" and "B-1"?

A Hilario Coto-ong.

Q So you passed also to Hilario Coto-ong the same Exhibit"B" and "B-1" and the ballpen so that he could sign his nameas witness to the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truthbefore the Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all signwith the same ballpen?

A One.

Such admissions from instrumental witnesses are indeed significantsince they point to no other conclusion than that the documents werenot signed by them in their presence but on different occasions sincethe same ballpen used by them supposedly in succession could not

have produced a different color from blue to black and from black toblue. In fact, the attestation clause followed the same pattern. Theabsurd sequence was repeated when they signed the codicil, for whichreason, We have no other alternative but to disallow the Last Will andCodicil. Verily, if the witnesses and testatrix used the same ballpen,then their signatures would have been in only one color, not in variousones as shown in the documents. Moreover, the signatures, in differentcolors as they are, appear to be of different broadness, some beingfiner than the others, indicating that, contrary to what thetestamentary witnesses declared on the witness stand, not only oneballpen was used, and, therefore, showing that the documents werenot signed by the testatrix and instrumental witnesses in the presenceof one another. . . " (Rollo, pp. 44-46. Citations omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motionwas denied by the respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent


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courts conclusion that both decedents will and codicil were not subscribed by thewitnesses in the presence of the testator and of one another, contrary to the requirementsof Article 805 of the Civil Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OFSUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THEAPPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDINGBASED ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD

TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OFSUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIALINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER

INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OFSUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THEAPPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING

THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LASTWILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIALINGDAN BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidencesubmitted, respondent appellate court erred in concluding that both decedents Last Willand Testament, and its Codicil were subscribed by the instrumental witnesses on separateoccasions. As a general rule, factual findings of the Court

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