Taboada Vs Rosal

#2 FIRST DIVISION
G.R. No. L-36033. November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, Petitioner,
v.
HON. AVELINO S. ROSAL, as Judge of the Court of First
Instance of Southern Leyte, (Branch III, Maasin), Respondent.
PONENTE: GUTIERREZ, JR., J.
Facts:
Petitioner filed a petition for probate in CFI Southern Leyte of
the will of Perez. The will consists of two pages. The first page
contains the entire testamentary dispositions and is signed at
the end or bottom of the page by the testatrix alone and at the
left hand margin by the three instrumental witnesses. The
second page, which contains the attestation clause and the
acknowledgment, is signed at the end of the attestation clause
by the three attesting witnesses and at the left hand margin by
the testatrix.Petitioner presented Timkang, one of the
subscribing witnesses, who testified on its genuineness and
due execution.
CFI denied the probate of the will for want of a formality in its
execution because the will was signed at the bottom of the
page solely by the testatrix and at the left hand margin by
three instrumental witnesses. The judge interpreted Article
805 of the Civil Code to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the "end"
of the will but all the three subscribing witnesses must also
sign at the same place or at the end, in the presence of the
testatrix and of one another, because the attesting witnesses
to the will attest not merely the will itself but also the
signature of the testator. Petitioner moved to reconsider, but
was denied. Hence, the present petition for review.
Issue:
Whether or not Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting
witnesses sign at the end of the will and in the presence of the
testatrix and of one another. [NO]
Ruling:
Petition is Granted. CFI Decision Appealed from
is Set Aside.
Article 805 of the Civil Code provides:
"Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators name written by some
other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
"The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
"The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the with and the pages thereof in the
presence of the testator and of one another.
"If the attestation clause is in a language not known to the witnesses, it

shall be interpreted to them."
The respondent Judge interprets the above-quoted provision

of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but all the
three subscribing witnesses must also sign at the same place
or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not
merely the will itself but also the signature of the testator. It is
not sufficient compliance to sign 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 make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the will
that the signatures of the subscribing witnesses should be
specifically located at the end of the will after the signature of
the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space
or particular location where the signatures are to be found as
long as this space or particular location wherein the signatures
are found is consistent with good faith and the honest frailties
of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must
be subscribed or signed at its end by the testator himself or by
the testators name written by another person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
It must be noted that the law uses the terms attested and
subscribed. Attestation consists in witnessing the testators
execution of the will in order to see and take note mentally
that those things are done which the statute requires for the
execution of a will and that the signature of the testator exists
as a fact. On the other hand, subscription is the signing of the
witnesses names upon the same paper for the purpose of
identification of such paper as 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 the will in this case was subscribed in
a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,

unsubstantial departure from the usual 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 the provisions on the law
on wills in this project consists in the liberalization of the
manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with
sufficient safeguards and restrictions to prevent the
commission of fraud 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 the execution of a will" (Report of the Code Commission, p.
103).
Parenthetically, Judge Ramon C. Pamatian stated in his

questioned order that were it not for the defect in the place of
signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met

and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when
the will was properly identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. 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 to state the number of pages used in
writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire
will that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses.
As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina
dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states 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 following observations with respect to the purpose
of the requirement that the attestation clause must state the
number of pages used:jgc:chanrobles.com.ph
"The law referred to is Article 618 of the Code of Civil

Procedure, as amended by Act No. 2645, which requires that
the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has
been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada,
42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil. 405;
Gumban v. Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil.
481; Echevarria v. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or
passes composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not
state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains
a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule
of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely
technical considerations."
Ino v. Ino (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:chanrobles virtual lawlibrary
". . . Impossibility of substitution of this page is assured not

only (sic) the fact that the testatrix and two other witnesses,
did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom
the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted 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 its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence
on record attest to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. v. Murciano, 49
Off. Gaz 1459, at 1479 (decision on reconsideration)
witnesses may sabotage the will by muddling or bungling it or
the attestation clause."
- Digested [03 August 2017, 9:10]
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#2 FIRST DIVISION

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

Article 805 of the Civil Code provides:

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

The respondent Judge interprets the above-quoted provision

On the other hand, the petitioner maintains that Article 805 of

We find the petition meritorious.

Insofar as the requirement of subscription is concerned, it is

While perfection in the drafting of a will may be desirable,

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

Parenthetically, Judge Ramon C. Pamatian stated in his

The objects of attestation and of subscription were fully met

We have examined the will in question and noticed that the

"The law referred to is Article 618 of the Code of Civil

". . . Impossibility of substitution of this page is assured not

- Digested [03 August 2017, 9:10]

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