1.

ROSARIO GARCIA VS JULIANA LACUESTA

90 Phil 189 – Succession – Signing Using an X Mark

FACTS:
Antero Mercado left a will dated January 3, 1943. The will appears to have been signed by
Atty. Florentino Javier as he wrote the name of Antero Mercado and his name for the testatior on the
will. HOWEVER, immediately after Antero Mercado’s will, Mercado himself placed an “X” mark.
The attestation clause was signed by three instrumental witnesses. Said attestation clause states that
all pages of the will were “signed in the presence of the testator and witnesses, and the witnesses in
the presence of the testator and all and each and every one of us witnesses.” The attestation clause
however did not indicate that Javier wrote Antero Mercado’s name.
ISSUE:
Whether or not the will is valid.
HELD:
No. The attestation clause is fatally defective for failing to state that Antero Mercado caused
Atty. Florentino Javier to write the testator’s name under his express direction, as required by Section
618 of the Code of Civil Procedure.
But is there really a need for such to be included in the attestation clause considering that even though Javier
signed for Antero, Antero himself placed his signature by virtue of the “X” mark, and by that, Javier’s
signature is merely a surplusage? That the placing of the “X” mark is the same as placing Antero’s thumb
mark.
No. It’s not the same as placing the testator’s thumb mark. It would have been different had it been
proven that the “X” mark was Antero’s usual signature or was even one of the ways by which he
signs his name. If this were so, failure to state the writing by somebody else would have been
immaterial, since he would be considered to have signed the will himself.

2. BARUT V. CABACUNGAN
21 P 461

FACTS:

Barut applied for the probate of the will of deceased, Maria Salomon. The testatrix stated in the
will that being unable to read or write, the will was read to her by Ciriaco Concepcion and Timotea
Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix. The probate
was contested by a number of the relatives of the deceased on various grounds.

The probate court found that the will was not entitled to probate because “the handwriting of the
person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more
like the handwriting of one of the other witnesses to the will than to the person whose handwriting it
was alleged to be” (i.e. The probate court denied probate because the signature seemed to not have
been by Severo Agayan but by another witness).

ISSUE: Was the dissimilarity in handwriting sufficient to deny probate of the will?
HELD:

No. The SC found that the mere dissimilarity in writing is sufficient to overcome the
uncontradicted testimony of all the witnesses that the signature of the testatrix was written by Severo
Agayan. It is also immaterial who writes the name of the testatrix provided it is written at her request
and in her presence and in the presence of all the witnesses to the execution of the will.

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

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

3. LUCIO BALONAN VS EUSEBIA ABELLANA

109 Phil 369 – Succession – Signature of Testator

FACTS:
Anacleta Abellana left a will. In said will, she let a certain Juan Bello sign the will for her. The will
consists of two pages. The first page is signed by Juan Abello and under his name appears
typewritten “Por la testadora Anacleta Abellana”. On the second page, appears the signature of Juan
Bello under whose name appears the phrase, “Por la Testadora Anacleta Abellana” – this time, the
phrase is handwritten.
ISSUE:
Whether or not the signature of Bello appearing above the typewritten phrase “Por la testadora
Anacleta Abellana” comply with the requirements of the law prescribing the manner in which a will
shall be executed.
HELD:
No. Article 805 of the Civil Code provides that:
“Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or
by the testator’s name written by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another.”
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will
by said Abellana herself, or by Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or that his name be affixed thereto
by some other person in his presence and by his express direction.
Note that the phrase “Por la testadora Anacleta Abellana” was typewritten and above it was the
signature of Abello – so in effect, when Abello only signed his name without writing that he is doing
so for Anacleta, he actually omitted the name of the testatrix. This is a substantial violation of the law
and would render the will invalid.

4. BEATRIZ NERA VS NARCISA RIMANDO

18 Phil 450 – Succession – What “In the presence of each other” means
When a certain will was being signed, it was alleged that the testator and some subscribing witnesses
were in the inner room while the other subscribing witnesses were in the outer room. What separates
the inner room from the outer room was a curtain. The trial court ignored this fact in its
determination of the case as it ruled that the determination of this specific fact will not affect the
outcome of the case.
ISSUE:
What is the true test of the testator’s or the witness’ presence in the signing of a will?
HELD:
The Supreme Court emphasized that the true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other sign, but whether they might have
seen each other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.
The position of the parties with relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they choose to do so.
The Supreme Court, in this case, determined that all the parties were in the same small room when
each other signed. Hence, they were in each other’s presence (though the facts of the case didn’t
elaborate – the SC just ruled so). The SC ruled that if some of the witnesses were really in the outer
room (a fact which was not established according to the SC) separated by a curtain, then the will is
invalid, the attaching of those signatures under circumstances not being done “in the presence” of the
witness in the outer room.

5. MARTIR vs MARTIR ( no digest, tamad mo eh)

G.R. No. 46995 June 21, 1940

In re testate estate of the deceased Hilarion Martir.

HERMOGENES N. MARTIR applicant-appellee,
vs.
ANGELA MARTIR, oppositor-appellant.

LAUREL, J.:

This is an appeal from the decision of the Court of First Instance of Occidental Negros in special
proceeding No. 7205, rendered on July 9, 1938, allowing the probate of the last will and testament
(Exhibit AA) of Hilarion Martir and confirming the. appointment of Hermogenes Martir as the
executor..

The following pertinent facts are disclosed by the record: On December 22, 1936, Hermogenes Martir
filed a petition with the Court of First Instance of Occidental Negros for the probate of the will of his
deceased father, Hilarion Martir, the document being then identified as Exhibit AA. The said
document appears to have been prepared by attorney and notary public, Esteban H. Korral, in the
Visayan dialect, with one original and two carbon copies. On August 14, 1935, the will was signed by
said testator and the three attesting witnesses: Valeriano Gatuslao, Dionisio Gonzaga, and Olimpio de
la Rama. It was decided that one of the witnesses read the will to the testator, and for this purpose
Dionisio Gonzaga was selected. This was done. After the reading to the document the testator wrote
on the space immediately beneath the last paragraph of the instrument on page 3, the following:
"Murcia, Occidental Negros — Agosto 14. 1935." This addition in the handwriting of the testator
appears both in the original Exhibit AA and in the carbon copy Exhibit AA-1. The testator than
proceeded to sign the original on the left margin of the four pages and at the foot of its body over his
typewritten name and surname on page 3 thereof in the presence of the above-named attesting
witnesses. Then the witnesses, one after another and in the presence of the testator and of each other.
signed each and every one of the four pages on the left margin, Olimpio de la Rama also signing at
the foot of the attestation clause on page 3, and Valeriano Gatuslao and Dionisio Gonzaga likewise
affixed their signatures at the foot of the same clause, but, for lack of conveniently sufficient space on
page 3, on the upper part of page 4. Below the signatures of the witnesses Gatuslao and Gonzaga on
the upper part of page 4 there appears a "Nota" over the signature of the testator containing certain
instruction to his children. Under this note appears the declaration signed by the oppositor Salvacion
Angela expressing conformity to the conditions set forth above.

On January 26, 1937, an opposition was entered to the probate of this will by Salvacion Angela,
daughter of the testator. The opposition was amended on February 12, 1937, alleging as principal
grounds that the will was not executed and signed by the witnesses in accordance with law; that the
signatures of the testator were obtained through deceit and fraud and that undue influence was used
by the proponent Hermogenes Martir over the testator. After hearing, the trial court allowed the will
to probate and, as stated, confirmed the appointment of Hermogenes Martir as executor.

On appeal the oppositor-appellant makes an assignment of seven errors which may be condensed
into the following: (a) that the will was void because the first sheet is not numbered as required by
law; (b) that Arabic numerals, instead of letters, were used in the pagination of the other sheets of the
will, (c) that fraud and undue influence were used on the testator, and (d) that the attestation clause
was insufficient in law.

The first sheet of the will bears no number and the oppositor claims that this circumstance is fatal to
its validity. The authenticity of this unnumbered page, however, is not questioned, nor the
genuineness of the signatures of the testator of the witnesses on this sheet. There is no suggestion
either that the deceased had executed another will either before or after the execution of the
controverted will. The principal object of the requirement with reference to the numeration of the
pages of the will is to forestall any attempt to suppress or substitute any of the pages thereof. In the
absence of collusion or fraud and there being no question regarding the authenticity of the first page
and the genuineness of the signatures appearing thereon, we hold that the mere fact that the first,
sheet is unnumbered is not sufficient to justify the invalidation of the will (Abangan vs. Abangan, 40
Phil., 476 Unson vs. Abella, 43 Phil., 504).

With reference to the use of Arabic numerals instead of letters on the of the will, this point is no
longer controversial. Arabic numerals are sufficient to indicate the correlation of the pages and to
apprise abstraction of any of them. (Unson vs. Abella, 43 Phil., 504; Aldaba vs. Roque, 43 Phil., 378).

On the point of fraud, deceit and undue influence, the lower court found to the contrary. Upon the
other hand, it appears that the oppositor waived her right to present evidence on this point. It should
also be observed that the testator lived for over a year after the execution of the will and the fact that
he did not change or revoke the will is very significant. Letters Exhibits "EE" and "LL" written by the
oppositor and her husband to the deceased furnish an explanation for the apparent discriminatory
attitude of the testator.

The opposition to the attestation clause is based on two grounds: (1) the statement of the attestation
clause that the will consists of four pages when it is written on sheet and (2) the said clause does not
recite that the testator signed each and every page of the will in the presence of the witnesses. An
examination, however, of Exhibit AA shows that the will really consists of four pages, the first page
bearing no number and the other three pages correlatively numbered in Arabic numerals. The
attestation clause as follows:

This will is composed of four pages and had been made and published by Hilarion Martir who
was the testator therein named, and that will was signed at the foot and on the left margin of
each and every page thereof in the presence of the said witnesses.

We are of the opinion that when the witnesses certified in the attestation clause that the same was
signed in their presence, they could not possibly refer to another person than the testator himself.

In conclusion, we find that the circumstances point to the execution of the contested will, and as there
is no evidence of bad faith or fraud, the will should be admitted to probate although it may suffer
from minor imperfections of language or from other non-essential details (Teofila Adeva Vda. de
Leynez vs. Ignacio Leynez, G. R. No. 46097, promulgated October 18, 1939).

The judgment appealed from is affirmed, with costs against the oppositor-appellant. So ordered.
6. UNSON vs ABELLA
 7. AZUELA vs CA
G.R. No. 122880 (2006)

FACTS:
Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo. However,
this was opposed by Geralda Castillo, who was the attorney-in-fact of “the 12 legitimate heirs” of the
decedent. According to her, the will was forged, and imbued with several fatal defects. Particularly,
the issue relevant in this subject is that the will was not properly acknowledged. The notary public,
Petronio Y. Bautista, only wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981
dito sa Lungsod ng Maynila.”
ISSUE:
Whether or not the will is fatally defective as it was not properly acknowledged before a notary
public by the testator and the witnesses as required by Article 806 of the Civil Code.
RULING:
Yes, the will is fatally defective. By no manner of contemplation can those words be construed as an
acknowledgment.
An acknowledgement is the act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby
the signore actually declares to the notary that the executor of a document has attested to the notary
that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be “acknowledged,” and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator.
8. PROTACIO vs MENDOZA
9. ANDALIS vs PULGUERAS
10. TIGNO vs AQUINO
11. GAMIDO vs. NBP OFFICIALS

12. AGAPITA N. CRUZ v. JUDGE GUILLERMO P. VILLASOR, GR No. L-32213, 1973-11-26

Facts:
probate of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased... ed,... opposed the
allowance of the will... alleging that the will was executed through fraud, deceit, misrepresentation
and undue influence;... executed without the testator having been fully informed of the contents...
particularly as to... what properties he was disposing;... not executed in accordance with law
Court allowed the probate of the said last will and testament
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco
Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged.
petitioner argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will.
private respondent -appellee, Manuel B. Lugay,... who is the supposed executor of the will...
maintains that there is substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them
57 American Jurisprudence, p. 227
"It is said that there are practical reasons for upholding a will as against the purely technical reason
that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's
signature under oath rather than as attesting the execution... of the instrument."
Issues:
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first... requiring at
least three credible witnesses to attest and subscribe to the will, and the second requiring the testator
and the witnesses to acknowledge the will before a notary public.
whether the last will and testament in question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that the three attesting
witnesses must appear before the... notary public to acknowledge the same.
Ruling:
We are inclined to sustain that of the appellant that the last will and testament in question was not
executed in accordance with law
We are inclined to sustain that of the appellant that the last will and testament in question was not
executed in accordance with law.
Principles:
Of the three instrumental witnesses thereto,... Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and
Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before
whom the will was supposed to have been acknowledged.
The notary public before whom the will was acknowledged cannot be considered... as the third
instrumental witness since he cannot acknowledge before himself his having signed the will.
To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and "before"... means in front or preceding in
space or ahead of.
if the third... witness were the notary public himself, he would have to avow, assent, or admit his
having signed the will in front of himself. This cannot be done because he cannot split his personality
into two so that one will appear before the other to acknowledge his participation in the... making of
the will.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangements.
That function would be defeated if the notary public were one of the attesting or instrumental
witnesses.
e would... be interested in sustaining the validity of the will as it directly involves himself and the
validity of his own act. It would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud... would be thwarted.
these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the
issue herein, because the notaries public and witnesses referred to in the aforecited cases merely acted
as... instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the
notary public acted not only as attesting witness but also as acknowledging witness, a situation not
envisaged by Article 806 of the Civil Code which reads:
"ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will or file another with the office of the
Clerk of Court."
To allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 805 requiring at least three credible... witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will

13. ALVARADO vs. GAVIOLA

September 14, 1993

FACTS:

The testator did not read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the 8-paged document, read the same aloud in the presence of the testator, the 3
instrumental witnesses and the notary public. The latter 4 followed the reading with their own
respective copies previously furnished them.

Said will was admitted to probate. Later on, a codicil was executed, and by that time, the
testator was already suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read the final draft of
the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence
of the three instrumental witnesses (same as those of the notarial will) and the notary public who
followed the reading using their own copies.

ISSUE:

Was there substantial compliance to the reading of the will?

HELD:

Article 808 not only applies to blind testators, but also to those who, for one reason or
another, are incapable of reading their wills. Hence, the will should have been read by the notary
public and an instrumental witness. However, the spirit behind the law was served though the letter
was not. In this case, there was substantial compliance. Substantial compliance is acceptable where
the purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege.

In this case, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place.
14. LOPEZ vs LOPEZ
 15. CANEDA V. CA
222 SCRA 781

FACTS:

On December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight
years of his life, executed a last will and testament at his residence before 3 witnesses.

He was assisted by his lawyer, Atty. Emilio Lumontad.

In the will, it was declared that the testator was leaving by way of legacies and devises his real and
personal properties to several people all of whom do not appear to be related to the testator.

4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and testament,
but numerous postponements pushed back the initial hearing of the probate court regarding the will.

On May 29, 1980, the testator passed away before his petition could finally be heard by the probate
court.

Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special administrator of the
testator’s estate.

Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition for intestate proceedings. They also opposed the probate of the testator’s will and the
appointment of a special administrator for his estate.

Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an
order that the testate proceedings for the probate of the will had to be heard and resolved first.

In the course of the proceedings, petitioners opposed to the allowance of the testator’s will on the
ground that on the alleged date of its execution, the testator was already in poor state of health such
that he could not have possibly executed the same. Also the genuineness of the signature of the
testator is in doubt.

On the other hand, one of the attesting witnesses and the notary public testified that the testator
executed the will in question in their presence while he was of sound and disposing mind and that
the testator was in good health and was not unduly influenced in any way in the execution of his
will.

Probate court then rendered a decision declaring the will in question as the last will and testament of
the late Mateo Caballero.

CA affirmed the probate court’s decision stating that it substantially complies with Article 805. Hence
this appeal.

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

HELD:

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

Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged before a
notary public by the testator and the attesting witnesses. The attestation clause need not be written in
a language known to the testator or even to the attesting witnesses.

It is a separate memorandum or record of the facts surrounding the conduct of execution and once
signed by the witnesses it gives affirmation to the fact that compliance with the essential formalities
required by law has been observed.

The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and
to insure the authenticity thereof.

It is contended by petitioners that the attestation clause in the will failed to specifically state the fact
that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and
that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator
and of each other. And the Court agrees.

The attestation clause does not expressly state therein the circumstance that said witnesses subscribed
their respective signatures to the will in the presence of the testator and of each other.

The phrase, “and he has signed the same and every page thereof, on the space provided for his
signature and on the left hand margin,” obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words” as his last will and testament.”

Clearly lacking is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. That the absence of the statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the will that is here
sought to be probated.

Also, Art. 809 does not apply to the present case because the attestation clausetotally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the testator and
of each other. The defect in this case is not only with respect to the form or the language of
the attestation clause. The defects must be remedied by intrinsic evidence supplied by the will itself
which is clearly lacking in this case.

Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be
revived.

Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or
language of the will. This is because there is not substantial compliance with Article 805.