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JUDAS and ERIKA
3 LLB
"Heirs as Interested Persons/Substitutes": Since the administratoris only a representative of the estate or the heirs, the heirs can do what the administrator is authorized to do. Further, the Rules of Court specifically requires that the lawyer handling the case notifies the court of the demise of a party and submit to the court the names of the heirs or executor or the administrators. Once a case is filed and the cause of action survives the death of a party, that cause of action is part of the transmissible rights which immediately becomes vested in the heirs at the moment
of death of the party. Substitution will not be prevented by the failure of the heir in the meantime to institute the proper settlement proceedings.
DE BORJA v. VDA. DE BORJA
46 SCRA 577 (1972)
FACTS: Francisco de Borja, upon the death of his wife Josefa,fi led for the probate of her will. When the will was probated, Francisco was appointed as executor and administrator and herein appellee, Jose de Borja, their son was appointed as coadministrator.Subsequently, Francisco took upon himself, a secondwife, Tasiana Ongsingco (Vda. De Borja). Even before the estate of Josefa was settled, Francisco died. Tasiana instituted testate proceedings wherein she was appointed special Administratrix. The relationship between the children of the first marriage and the second wife, Tasiana had been plagued with numeroussuits and counter-suits and in order to put an end to all theselitigation, a compromise agreement was entered into betweenJose, in his personal capacity and as administrator of the Testate Estate of Josefa, and by Tasiana, as the heir and surviving spouse of Francisco. Pursuant to the compromise agreement, Jose agreed and obligated himself to pay Tasiana the amount of P 800,000.00 as '"full and complete payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estateof Josefa, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise." When Jose submitted the compromise agreement for Court approval with the CFI of Rizal (probate of will of fi rst wife) and the CFI of Nueva Ecija (probate of will of Francisco), Tasiana opposed in both instances. She claims among others, that the heirs cannot enter into such kind of agreement without fi rst probating the will of Francisco de Borja.
ISSUE: Whether the compromise agreement is valid?
HELD: In assailing the validity of the agreement, Tasiana relies on this Court's decision in Guevara v. Guevara wherein the Court held the view that presentation of a will for probate is mandatory and that the settlement and distribution of an estateon the basis of intestacy when the decedent left a will, is against the law and public policy. However, the doctrine in said case is not applicable to the case at bar. There was here no attempt to settle or to distribute the estate of Francisco among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana of any and all her individual share and interest, actual or eventual, in the estate of Francisco and Josefa. Since a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such predecessor in interest, there is no legal bar to a successor disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir.
"Cross as a Signature": A cross cannot be likened to a thumb mark since it can be easily written by some other person whereas a thumb mark may only be placed by the testator himself. Unless it can be proven that the testator's customary signature is a cross, then the will cannot be considered to have been signed by the testator himself.
SUROZA v. HONRADO
110 SCRA 381 (1981)
FACTS: Marcelina Suroza supposedly executed a notarial will in July 1973 when she was 73 years old. The will, which was in English, was thumbmarked by Marcelina, who was illiterate. Upon her death, the will which bequeathed all her estate to a supposed granddaughter was presented for probate. Opposition to the probate was made by Nenita Suroza, the wife of the alleged adopted son of Marcelina on the ground of preterition of said son, Agapito, and on the ground that the will was void because Marcelina did not appear before a notary public and because it is written in English which is not known to Marcelina. The presiding judge denied the opposition of Nenita Suroza and admitted the will to probate.
ISSUE: Was there sufficient evidence on record to show that the will on its face was void?
HELD: Upon perusing the will and noting that it was written in English and was thumb marked by an obviously illiterate testatrix, respondent Judge could have readily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language." That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void (Acop v. Piraso, 52 Phil.660).
"What constitutes a Signature": A complete signature is not essential to the validity of a will. Perhaps to provide for greater authenticity, what should be found at the end of the will is the testator's customary signature. However, since the law does not require his full signature, the initials or even a thumb mark by the testator may be deemed sufficient to comply with this requirement. A thumb mark at the end of the will may be considered as a valid signature especially when a testator cannot affix his signature due to some medical condition such as paralysis.
BALONAN v. ABELLANA
109 SCRA 359 (1960)
FACTS: The last Will and Testament of Anacleta Abellana which is sought to be probated consists of 2 pages written in Spanish. Both pages of the Will are signed by Juan Bello and under his name appears the typewritten words "Por la testadora Anacleta Abellana".
ISSUE: Does the signature of Juan Bello above the typewritten words "Por la testadora Anacleta Abellana comply withthe requirements of law prescribing the manner in which a will shall be executed?
HELD: Article 805 requires, among others, that the testatorhimself must sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. In the case of Ex Parte Pedro Arcenas, et, al., 4 Phil., 700, it was stated that "Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe by the testator, Richard Roe; or in this form: By the testator, John Doe, Richard Roe.' All this must be written by the witness signing at the request of the testator. In the case of Barut v. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. 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 Dr. 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 affi xed thereto by some other person in his presence and by his express direction.
GARCIA v. LACUESTA
90 Phil 189 (1951)
FACTS: The will is written in the Ilocano dialect and containsthe following attestation clause:"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses." The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero 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.
ISSUE: Was the will in compliance with Article 805?
HELD: No. The Supreme Court in affi rming the ruling of the Court of Appeals held that 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. The herein petitioner argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala v. Gonzales and Ona, 53 Phil., 104; Dolar v. Diancin, 55 Phil., 479; Payad v. Tolentino, 62 Phil., 848; Neyra v. Neyra, 76 Phil., 296 and Lopez v. Liboro, 81 Phil., 429. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature refl ection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
Meaning of "in the presence of" : Presence of the witnesses depends upon the opportunity of the witnesses to see the execution of the will. "In the presence of each other" does not depend upon proof of the fact that the eyes of the witnesses were precisely cast upon the instrument at the moment of each and every subscription. "In the presence of each other" depends on existing conditions and positions of the witnesses in relation to each other such that by merely casting their eyes in the proper direction, they could have seen each other sign, without changing their relative positions or existing conditions.
NERA v. RIMANDO
18 Phil 450 (1911)
ISSUE: Whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.
HELD: The particular subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument. Hence, the will complied with the requirement of "in the presence." Had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the
attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This is because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature." 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 been 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 question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.
"Subscribing" v. "Attesting" Signature: The placement of the signature of the testator at the end of the will is crucial to its validity while the placement of the signature on each and every page on the left margin will not invalidate the will. The difference lies in the purpose of the signature, the signature as required in the first paragraph of Article 805 is to attest, declare, and confirm that all the dispositions above it are of and by the testator whereas the signature as required in the second paragraph of the same article is merely to identify each and every page of the will. As such, an attesting signature must be found below the dispositions in the will as a matter of necessity while an identifying or subscribing signature may be placed anywhere in the will, preferably on the left margin as a matter of style. "Attestation" and "subscription" differ in meaning. Attestation is that act of the senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. (Caneda v. Court of Appeals, G.R. No. 103554, May 28, 1993)
TABOADA v. ROSAL
118 SCRA 195 (1982)
FACTS: Petitioner Taboada presented for probate the alleged last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of 2 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 3 instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the 3 attesting witnesses and at the left hand margin by the testatrix. The respondent Judge denied probate of the will for want of formality in its execution, that is, that the 3 subscribing witnesses did not sign at the same place or at the end of the will as the testator did.
ISSUE: Does 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?
HELD: It must be noted that Article 805 uses the terms attested and subscribed. Attestation consists in witnessing the testator's 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. Insofar as the requirement of subscription is concerned, it is our considered view that the will was subscribed in a manner which fully satisfies the purposes of identification. The signatures of the instrumental witnesses on the left margin of the fi rst 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 clauses. 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. 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 the subscribing witness to be the same will executed by the testatrix.
"Placement of Attesting Signature": The attesting signature of the testator must be found at the logical end of the will, otherwise the will is void. The attesting signature of the witnesses must be found at the end of the attestation clause, otherwise the will is void.
ABANGAN v. ABANGAN
40 Phil.477 (1919)
FACTS: The last will of Ana Abangan consisted of 2 sheets, the first of which contained the entire disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by 3 witnesses. The following sheet contained only the attestation clause duly signed at the bottom by the 3 instrumental witnesses. Neither of the sheets was signed on the left margin by the testatrix and the 3 witnesses, nor numbered by letters. According to the oppositors to the probate of the will, these defects dictate that the will not be admitted to probate.
ISSUE: Is it indispensable that the signatures of the testatrix and the 3 witnesses appear on the left margin, and that all pages of the will be numbered?
HELD: In requiring that each and every sheet of the will should also be signed on the left margin by the testator and 3 witnesses in the presence of each other, Act No. 2645 evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and 3 witnesses, their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the sheet that it could consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security. In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear that the object of the law is to know whether any sheet of the will has been removed. But when all the dispositive parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden. As to the attestation clause accompanying the will, the signatures of the testatrix and of the 3 witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that the same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes the will.
ICASIANO VS. ICASIANO
G.R. No. L-18979June 30, 1964
DOCTRINE: The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed.
ISSUE: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page is sufficient to deny probate of the will.
RULING: No, The failure to sign was entirely through pure oversight or mere inadvertence. Since the duplicated bore the required signatures, this proves that the omission was not intentional. Even if the original is in existence, a duplicate may still be admitted to probate since the original is deemed to be defective, then in law, there is no other will but the duly signed carbon duplicate and the same can be probated. The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed. Note that this ruling should not be taken as a departure from the rules that the will should be signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.
TORRES & LOPEZ DE BUENO vs. LOPEZ
GR No. 24569 February 26, 1926
FACTS: Tomas Rodriguez y Lopez, single, died on February, 25, 1924 leaving all his estate to Vicente Lopez. On August 10, 1923, Tomas Rodriguez designated Vicente Lopez as administrator of his property due to his feeble health, such was questioned by Margarita Lopez, CFI of Manila concluded Vicente Lopez as Tomas Rodriguez's guardian.
Tomas Rodriguez voiced out the need to form a will, and Vicente Lopez has procured Judge Maximino Mina. Manuel Torres, one of the executors named in the will, asked the will to be allowed. Such was contested by Manuel Lopez on the grounds:
(a) that testator lacked mental capacity because at the time of institution he was suffering "senile dementia" and was under guardianship;
(b) that undue influence had been exercised by the persons benefited; and
(c) that the signature of Rodriguez was obtained through fraud and deceit.(Luz Lopez allegedly deceived Tomas Rodriguez to sign by stating that such document he was about to sign was in connection with a complaint against Dr. Boanan, one of the witness of the signing of the will).
Trial Court denied legalization of the will on the ground of "lack of mental capacity" at the signing of the will by the testator.
ISSUES: (1) Whether or not Tomas Rodriguez has testamentary capacity to consider the will valid?
(2) Whether or not there was undue influence in the procurement of the signature of Tomas Rodriguez in the will?
RULING: Yes. Tomas Rodriguez has testamentary capacity to constitute a will. Though there was conflict of medical opinions on the soundness of mind of the testator. (Drs. Calderon, Domingo, Herrera claimed that testator had full understanding of the acts he was performing and that they were witnesses in the said signing of the will; Drs. Delos Angeles, Tietze and Burke certified that Rodriguez was of unsound mind and is diagnosed of senile dementia).
Code of Civil procedure prescribes a requisite that the testator be of "sound mind", a sound mind is a disposing mind. One of the grounds of disallowing a will is if the testator is insane or otherwise incapable of the execution. With such the Court has adopted a definition of "Testamentary Capacity" as: The capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty .The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly established the charge of mental incapacity that the courts will intervene to set aside a testamentary document.
MATIAS VS. SALUD, et al.
(June 29, 1957)
Doctrine:
Appointment of Basilia as "special administrator", when she was obviously unfit foresaid office due to her advanced age of 80 and blindness, amounts to grave abuse of discretion on the part of respondent judge.
Nature:
petition for certiorari to annul orders of CFI Judge Gonzales
FACTS: May 1952, Aurea Matias initiated special proceeding with petition for probate of document purporting to be the last will of her aunt, Gabina, Raquiel, who died single on May 8, at age 92. The heir to entire estate ( except properties bequeathed to other nieces and nephews) is Aurea Matias who is also named "executrix".
Basilia Salud, first cousin of deceased, opposed probate. Probate court sustained opposition and denied probate. So Aurea Matias went to SC, where it is now pending decision. Meanwhile, on Feb 1956, Basilia Salud moved for dismissal of Horacio Rodriquez as special administrator of estate and the appointment of Ramon Plata. Rodriguez, although notified of hearing, did not appear but instead filed an urgent motion for additional time to answer charged against him by Basilia. Motion was not granted and Basilia introduced evidence against him, and Judge eventually found him guilty of abuse of authority and gross negligence so he was relieved of his post as special administrator and granted the motion of Basilia, consequently, Victorina Salud (niece of Basilia, ordered to help Basilia and be her adviser, as she is very old and disabled) and Ramon Plata were appointed administrators.Aurea Matias, asked that order be set aside and that she be appointed co-administratrix with Horacio Rodriguez upon the ground that Basilia is over 80, totally blind and physically incapacitated to perform duties, and said movant is the universal heiress of deceased and the person appointed as executrix in her alleged last will. But the motion was denied.
March 17, 1956, Basilia tendered her resignation as special administratrix by reason of her old age and disability, and recommending Victorina Salud in her place. Aurea sought reconsideration of order confirming the 3 administrators and expressed conformity with resignation of Basilia. However, she objected to the appointment of Victorina on account of her antagonism towards Aurea. Victorina was the principal and most interested witness for opposition to probate of alleged last will. Aurea proposed administration be entrusted to PNB, Monte de Piedad, BPI or similar institutions, should the court be reluctant to appoint her.
Soon after, Plata and Victorina requested authority to collect rent due to estate and produce, as well as permission to sell palay belonging to estate. Judge granted both.
Aurea Salid instituted present action against Judge, Victorina and Plata for annulling orders of judge on the ground that they were issued with grave abuse of discretion.
ISSUES: WON judge committed Grave Abuse of Discretion in appointing Victorina and Plata and issuing such orders?
RULING: Yes.We can't fully sanction the acts of judge for the following reasons:
1. Although Horatio Rodriguez had notice of hearing of motion for his removal, he received copy of motion the date after the set date for hearing.
2. Aurea had no notice of hearing for removal of Horacio Rodriguez and Basilia's motion to appoint Plata. She also had no notice that her main opponent, Basilia and Victorina would be considered for management of estate. She therefore had no opportunity to object.
3. Order appointing Basilia was issued with evident knowledge of her physical disability, Judge having said that she "should be assisted and advised by her niece Victorina" and that the latter"shall always act as aide, interpreter and adviser of Basilia Salud".
4. Judge in effect appointed 3 special administrators of the estate,namely Basilia, Victorina and Plata.
5. Soon after institution of estate proceedings, issue arose between Aurea and Basilia regarding the person to be appointed special administrator. Former proposed Horacio Rodriguez while the latter recommented Victorina. The then court, presided over by Judge Bernabe, appointed Rodriguzed because unlike Victorina who was employed and lived in Manila, Rodriguez was a lawyer, former public prosecutor and mayor and a resident of Cavite. Judge Gonzales' order
was therefore a reversal of Judge Bernabe's order.
6. Although probate was denied by respondent Judge, this is not yet final as it is pending appeal. Aurea, therefore, still has a special interest to protect during pendency of her appeal.
7. As there are at least 2 factions among heirs and lower court deemed it best to appoint more than 1 special administrator, it is only just that both factions be represented in the management of the estate.The rule, laid down in(Roxas vs. Pecson,supra.)
to the effect that "only one special administrator may be appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case. The lower court appointed therein one specialadministrator for some properties forming part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2) separate and independent specia ladministrators. In the case at bar there is only one (1) special administration, the powers of which shall be exercised jointly by two special co-administrators. In short, the Roxas case is not squarely in point. Moreover, there are authorities in support of the power of courts to appoint several special co-administrators.
Therefore orders of respondent judge are ANNULLED and SET ASIDE. Lower court should re-hear matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to parties. Costs against Victorina and Plata.
JAVELLANA VS. LEDESMA
G.R. No. L-7179
FACTS: 1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the sister and nearest surviving relative of the deceased. She appealed from this decision alleging that the will were not executed in accordance with law. The testament was executed at the house of the testatrix. On the other hand, the codicil was executed after the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary public. Now, the contestant, who happens to be one of the instrumental witnesses, asserted that after the codicil was signed and attested at the San Pablo hospital, Gimotea (the notary) signed and sealed it on the same occasion. Gimotea, however, said that he did not do so, and that the act of signing and sealing was done afterwards.
One of the allegations was that the "certificate of acknowledgement" to the codicil was signed somewhere else or in the office of the notary. The signature of the testatr ix and the witnesses were procured at the hospital, and was signed and sealed by the notary only when he brought it in his office.
ISSUE: Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects the validity of the will.
RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and the notary be accomplished in ONE single act. All that is required is that every will must be acknowledged before a notary public by the testator and witnesses. The subsequent signing and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate execution out of the presence of the testator and the witnesses cannot be a violation of the rule that testaments should be completed without interruption.
JOSE ANTONIO GABUCAN, vs. HON. JUDGE LUIS D. MANTA,et al.
G.R. No. L-51546. January 28, 1980.
Doctrine: DOCUMENTARY STAMP TAX: Rule on Admissibility of Document as Evidence- "Failure to affix a 30-centavo documentary stamp on a will not a fatal defect" as the probate court can require the proponent to affix the required documentary stamp to the "notarial acknowledgment" of the will; Non-admissibility of a document without the requisite documentary stamps subsists and the requisite stamp shall have been affixed thereto and cancelled. [Gabucan vs. Manta, 95 SCRA 752(1980)].
FACTS: This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirty centavo documentary stamp.
ISSUE: Whether or not the Documentary Stamp Tax should be affixed to make the will valid.
HELD: We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed". What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document. Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence. (Del Castillo vs. Madrilena, 49 Phil. 749).
BARUT VS. CABACUNGAN
G.R. L-6825 Febriary 15, 1912
FACTS: Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger part of decedent's property. After this disposition, the testatrix revoked all other wills and stated that since she is unable to read nor write, the will was read to her and that she has instructed Severino Agapan, one of the witnesses to sign her name in her behalf. The lower court ruled that the will is not entitled to probate on the sole ground that the handwriting of the person who signed the name of the testatrix does not appear to be that of Agapan but that of another witness.
ISSUE: Whether or not a will's validity is affected when the person instructed by a testator to write his name did not sign hisname.
HELD: No, it is immaterial who wrote the name of the testator provided it is, (1) written at her request, and (2) in her presence, and (3) in the presence of the witnesses. This is the only requirement under Sec. 618 of the Civil Code of procedure at that time.
CRUZ VS. VILLAZOR
G.R. L-32213 November 26, 1973
FACTS: The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them.
ISSUE: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC.
HELD: NO. The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time. To "acknowledge before" means to avow, or to own as genuine, to assent, admit, and 'before' means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd. Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.
GARCIA VS. VASQUEZ
G.R. No. L-26808 March 28, 1969
FACTS: Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she knew an spoke. The other will was executed in December 1960 consisting of only one page, and written in Tagalog. The witnesses to the 1960 will declared that the will was first read 'silently' by the testatrix before signing it. The probate court admitted the will.
The oppositors alleged that the as of December 1960, the "eyesight" of the deceased was so poor and defective that she could not have read the provisions contrary to the testimony of the witnesses.
ISSUE: Whether or not the will is valid.
RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC) should apply. If the testator is blind or incapable of reading, he must be apprised of the contents of the will for him to be able to have the opportunity to object if the provisions therein are not in accordance with his wishes.
The testimony of her Opthalmologist established that notwithstanding an operation to remove her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained mainly for viewing distant objects and not for reading. There was no evidence that her vision improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her own will. The admission of the will to probate is therefore erroneous.
