G.R. No.

L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE

JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositorsappellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila
admitting to probate the document and its duplicate, marked as
Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the
person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition
for the allowance and admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958,
and caused notice thereof to be published for three (3) successive
weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
filed her opposition; and on November 10, 1958, she petitioned to
have herself appointed as a special administrator, to which proponent

objected. Hence, on November 18, 1958, the court issued an order

appointing the Philippine Trust Company as special administrator.
1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad's opposition to the
probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion for
the admission of an amended and supplemental petition, alleging that
the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter,
the parties presented their respective evidence, and after several
hearings the court issued the order admitting the will and its duplicate
to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground
that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa Icasiano
at Pedro Guevara Street, Manila, published before and attested by
three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and
Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong, Notary

Public in and for the City of Manila; and that the will was actually
prepared by attorney Fermin Samson, who was also present during the
execution and signing of the decedent's last will and testament,
together with former Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and authenticity
of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The
latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit
"A" consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show
that the original of the will and its duplicate were subscribed at the end
and on the left margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three mentioned witnesses in
the testatrix's presence and in that of one another as witnesses (except
for the missing signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said will were duly
numbered; that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the aforesaid

attesting witnesses; that the will is written in the language known to

and spoken by the testatrix that the attestation clause is in a language
also known to and spoken by the witnesses; that the will was executed
on one single occasion in duplicate copies; and that both the original
and the duplicate copies were duly acknowledged before Notary
Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of
the original, admits that he may have lifted two pages instead of one
when he signed the same, but affirmed that page three (3) was signed
in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on the same occasion as
the original, and further aver that granting that the documents were
genuine, they were executed through mistake and with undue influence
and pressure because the testatrix was deceived into adopting as her
last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions
and dispositions thereof, whereby proponents-appellees stand to profit
from properties held by them as attorneys-in-fact of the deceased and
not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and
not to oppose the probate of it, on penalty of forfeiting their share in
the portion of free disposal.
We have examined the record and are satisfied, as the trial court was,
that the testatrix signed both original and duplicate copies (Exhibits
"A" and "A-1", respectively) of the will spontaneously, on the same in
the presence of the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a

language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the signatures
of the testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond
the writer's range of normal scriptural variation. The expert has, in
fact, used as standards only three other signatures of the testatrix
besides those affixed to the original of the testament (Exh. A); and we
feel that with so few standards the expert's opinion and the signatures
in the duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3
and 4 fail to show convincingly that the are radical differences that
would justify the charge of forgery, taking into account the advanced
age of the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting power.
On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of neither

(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson
vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well
die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the distribution
made in the will, under penalty of forfeiture of their shares in the free
part do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated on
another occassion. It is also well to note that, as remarked by the Court
of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining
as grounds for opposing probate shows absence of definite evidence
against the validity of the will.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of
this page is assured not only 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 attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as well
as by the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no
one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict
and literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not in the left
margin, could nevertheless be probated (Abangan vs. Abangan, 41
Phil. 476); and that despite the requirement for the correlative lettering
of the pages of a will, the failure to make the first page either by letters
or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These
precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but
without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked one
signature in its third page, it is easily discerned that oppositorsappellants run here into a dilemma; if the original is defective and
invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid
and can be probated, then the objection to the signed duplicate need
not be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent
and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the
probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter
the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion,
Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
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,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of
Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First
Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713,

entitled "In the Matter of the Petition for Probate of the Will of Dorotea
Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of
the will, the motion for reconsideration and the motion for appointment of a
special administrator.

Ramon C. Pamatian due to his transfer to his new station at 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.

In the petition for probate filed with the respondent court, the petitioner
attached the alleged last will and testament of the late Dorotea Perez. Written
in the Cebuano-Visayan dialect, 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 (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 three (3) attesting witnesses and at the left hand
margin by the testatrix.

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

administrator.

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

For the validity of a formal notarial will, 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?

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

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.

Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex parte praying for a thirty-day period within
which to deliberate on any step to be taken as a result of the disallowance of
the will. He also asked that the ten-day period required by the court to submit
the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the
probate of the will. However, the motion together with the previous
manifestation and/or motion could not be acted upon by the Honorable

Subsequently, the new Judge denied the motion for reconsideration as well as
the manifestation and/or motion filed ex parte. In the same order of denial,
the motion for the appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order requiring him to
submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.

Article 805 of the Civil Code provides:

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 lacier witnesses and

signed the will and the pages thereof in the presence of the testator and of
one another.

the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).

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

be interpreted to the witnesses, it shall be interpreted to them.

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 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 an 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 wig that the signatures of the subscribing
witnesses should be specifically located at the end of the wig 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 testator's
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 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 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 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 wig 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:
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 win 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 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 to be that the attestation clause must contain a statement of the number
of sheets or pages 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.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... 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 attests to the fun
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil.
Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders of the
respondent court which 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 respondent court is ordered to allow
the probate of the wig and to conduct further proceedings in accordance with
this decision. No pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ.,
concur.
Teehankee, J, is on leave.