G.R. No. L-32213 November 26, 1973AGAPITA N. CRUZ,petitioner,vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY,respondents.ESGUERRA,J.:Petition to review oncertiorarithe judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.The only question presented for determination, on which the decision of the case hinges, is 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.Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares 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. Reduced to simpler terms, the 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. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, 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, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: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.After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. 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. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, 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. To permit such a situation to obtain would be sanctioning a sheer absurdity.Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See alsoTrenwith v. Smallwood, 15 So. 1030). But 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 aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not asacknowledgingwitnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:ART. 806. Every will must beacknowledged 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. [Emphasis supplied]To allow the notary public to act as third witness, or one 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 80 be 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. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.Cost against the appellee.G.R. No. L-5826 April 29, 1953Testate estate of the late VICENTE CAGRO. JESUSA CAGRO,petitioner-appellee,vs.PELAGIO CAGRO, ET AL.,oppositors-appellants.Clouduallo Lucero and Vicente C. Santos for appellants.Marciano Chitongco and Zosimo B. Echanova for appellee.PARAS,C.J.:This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and appellee.Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ.,concur.Separate OpinionsBAUTISTA ANGELO,J.,dissenting:I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be admitted to probate . It appears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of each other but also that when they did so, the attestation clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear immediately after the attestation clause.This objection is too technical to be entertained. In the case of Abanganvs. Abangan, (40 Phil., 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions has already been accomplished. We may say the same thing in connection with the will under consideration because while the three instrumental witnesses did not sign immediately by the majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.The following observation made by this court in the Abangan case is very fitting:The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it i not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary useless and frustrative of the testator's last will, must be disregarded. (supra)We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (article 788 and 791, New Civil Code)I am therefore of the opinion that the will in question should be admitted to probate.TUASON,J.,dissenting:I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as a fact that the attestation clause was no signed when the witnesses signatures appear on the left margin and the real and only question is whether such signatures are legally sufficient.The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is not any the less the writter's simply because it was signed, not at the conventional place but on the side or on top.G.R. No. L-13431 November 12, 1919In re will of Ana Abangan.GERTRUDIS ABANGAN,executrix-appellee,vs.ANASTACIA ABANGAN, ET AL.,opponents-appellants.Filemon Sotto for appellants.M. Jesus Cuenco for appellee.AVANCEA,J.:On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this decision the opponent's appealed.Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate.In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) 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 three witnesses (as the instant case), 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. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. 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 would 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 Act No. 2645 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.What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three 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 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.Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordal ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded.lawphil.netAs another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.G.R. No. L-12190 August 30, 1958TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,petitioner-appellant,vs.ILDEFONSO YAP,oppositor-appellee.Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.Arturo M. Tolentino for appellee.BENGZON,J.:On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words:Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:Vicente Esguerra, Sr. .............................................5 Bahagi

Fausto E. Gan .........................................................2 Bahagi

Rosario E. Gan .........................................................2 Bahagi

Filomena Alto ..........................................................1 Bahagi

Beatriz Alto ..............................................................1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime.After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the courta quoto change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed."This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses ineachandevery page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other.The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abanganvs.Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendozavs.Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabangvs.Delfinado, 34 Phil., 291; Tolentinovs.Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution.Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regardsthe document itselfas material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decidein the face of the document, whether the will submitted to it has indeed been written by the testator.Obviously, when the will itself is not submitted, thesemeans of opposition, andof assessing the evidenceare not available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared.Therefore, the question presents itself,may a holographic will be probated upon the testimony of witnesseswho have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document whichthey believedwas in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as tothe contentsof the will. Does the law permit such a situation?The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)Could Rule 77 be extended, by analogy, to holographic wills?Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 an implied admission that such loss or theft renders it useless..This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and requireitsidentity to be established by the three witnesses who depose that they have no reasonable doubt thatthe willwas written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whetherin the face of the document itselfthey think the testator wrote it. Obviously, this they can't do unlessthe will itselfis presented to the Court and to them.Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they havethe right and privilegeto comply with the will, if genuine,a right which theyshould not be denied by withholding inspection thereof from them.We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, whichdeniedprotocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated,the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect.Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando seotorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, sedesprende la necesidad de que el documento se encuentreen dichas condiciones en el momento de ser presentado ala Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmarque el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, porconstituir dicha omision un defecto insubsanable. . . .This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.7Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.Whereas in the case of holographic wills, if oral testimony were admissible9only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, andonly oneof them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected.If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifyingto a factwhich they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify asto their opinionof the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11Wherefore, the rejection of the alleged will must be sustained.Judgment affirmed, with costs against petitioner.G.R. No. L-15025 March 15, 1920In the matter of the estate of REMIGIA SAGUINSIN, deceased.ARCADIO DEL ROSARIO,applicant-appellant,JOSE A. DEL PRADO, ET. AL.,legatees-appellants,vs.RUFINA SAGUINSIN,opponent-appellee.Fernando Manikis and Gibbs, McDonough & Johnson for applicant and appellant.No appearance for legatees and appellants.Claro M. Recto for appellee.ARELLANO,C.J.:There was presented in the Court of First Instance of the city of Manila for allowance an instrument which the petitioner calls the will of Remigia Saguinsin. It is a manuscript signed by the alleged testatrix and three witnesses on October 3, 1918, the conclusion of which says: "I, the testatrix, sign in the presence of the witnesses this will written by D. Lino Mendoza at my request and under my direction." (Yo, la testadora, firmo en presencia de los testigos este testamento que ha escrito D. Lino Mendoza a mi ruego y bajo mi direccion.)--Then follows a signature and then these expressions: "The testatrix signed in our presence and each of us signed in the presence of the others." (La testadora ha firmado en nuestra presencia y cada uno de nosotros en presencia de los demas.) "Witness who wrote this will at the request and under the free and voluntary personal direction of the testatrix herself." (Testigo que escribio este testamento a ruego y bajo la libre y voluntaria direccion personal de la misma testadora.) (Sgd.) LinoMendoza "Attesting witnesses." (Testigos del testamento.) Then come three signatures.These three signature together with that of the alleged testatrix are written also on the left margin of the firs page or folio and on the third page or second folio, but not on the second page or reverse side of the first page where, as is seen, the manuscript is continued, the second folio not containing anything but the date and the and of the manuscript.Under these, conditions the instrument was impugned by a sister of the alleged testatrix and after the taking of the declaration of the authors of the signatures which appear three times and in different parts of the manuscript, the court declared that the document attached to the record could not be allowed as a will.Certain person who allege themselves to be legatees appealed jointly with the lawyer for the petitioner.And upon considering the case on appeal, this court decides:That, in conformity with Act No. 2645, amendatory to section 618 of the Code of Civil Procedure, the concluding part of the will does not express what that law, under pain of nullity, requires. Section 618, as amended, says: "The attestation shall state the number of sheets or pages used upon which the will is written . . . ." None of these requirements appear in the attesting clause at the end of the document presented. The second page,i.e.,what is written on the reverse side of the first, engenders the doubt whether what is written thereon was ordered written by the alleged testatrix or was subsequently added by the same hand that drew the first page and the date that appears on the third. With this non-fulfillment alone of Act No. 2645 it is impossible to allow the so-called will which violates said law.That besides this violation there is another as evident as the preceding. Said Act No. 2645 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, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet." The English text differs from the Spanish text: the former say only pages (paginas) while the latter puts (hojas). "Hoja," according to theDiccionario de la Academia, "is with respect to books or notebooksfolio." According to the same dictionary"pagina(page) is each of one of the two faces or planes of the leaf of a book or notebook; that which is written or printed on each page, for example I have read only two pages of this book." Two pages constitute one leaf. One page represents only one-half of one leaf. The English text requires that the signature which guarantees the genuineness of the testament shall be placed on the left hand margin of each page and that each page should be numbered by letter in the upper part This requirement is entirely lacking on the second page that is, on the reverse side of the first. According to the old method of paging "folio 1. y su vto." that is, first folio and the reverse side, should have been stated, and the second page would then have been included in the citation. By the failure to comply with this requisite the law has been obviously violated. In the English text the word "pages" does not leave any room for doubt and it is invariably used in the text of the law, whereas in the Spanish text, "hoja" and "pagina" are used indifferently as may be seen in the following part which says: "el atestiguamiento hara constar el numero dehojas o paginasutiles en que esta extendido el testamento." This failure to comply with the law also vitiates the will and invalidates it, as the second page is lacking in authenticity.This is a defect so radical that there is no way by which what is written on the reverse side of the first folio may be held valid. It is possible that this document consists of only the two folios numbered 1 and 2, and that on the reverse side of number 2 nothing may have been written upon the order of the testatrix, the testament ending at the foot of the first folio with the legacy "To my nephew Catalino Ignacio, pesos 200" (A mi sobrino Catalino Ignacio doscientos pesos) and from that part then immediately follows folio No. 2 "Manila a tres de Octubre de mil novecientos diez y ocho.--Yo la testadora firmo en presencia etc." (Manila, October 3, 1918, I, the testatrix, sign in the presence of etc.) There is nothing which guarantees all the contents of page 2. The margin of this page is absolutely blank. there is nothing which gives the assurance that the testatrix ordered the insertion of all the contents of page 2. It may very well be that it was subsequently added thereby substituting the will of the testatrix, a result for the prevention of which this manner of authenticity by affixing the signature on each page and not merely on each folio was provided for by law. This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written, the authenticity of all three of them should be guaranteed with the signature of the alleged testatrix and her witnesses. The English text which requires the signing of pages and not merely leaves or folios should prevail. it is so provided in section 15 of the Administrative Code (Act No. 2711).The judgment appealed from is affirmed, with costs of this instance against the appellant. G.R. No. L-36033 November 5, 1982IN 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.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.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.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.Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion,ex partepraying 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 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.Meanwhile, the petitioner filed a motion for the appointment of special administrator.Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filedex 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.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 signat the endof the will and in the presence of the testatrix and of one another?Article 805 of the Civil Code provides:Every will, other than a holographic will, must be subscribed at the 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.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.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.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 orat 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 termsattestedandsubscribedAttestation 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. (Ragsdale v. Hill, 269 SW 2d 911).Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification.The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission,p. 103).Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were 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".InSingson 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 Coquevs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarriavs. Sarmiento, 66 Phil. 611). Theratio decidendiof 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.G.R. No. 103554 May 28, 1993TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,petitioners,vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero,respondents.Palma, Palma & Associates for petitioners.Emilio Lumontad, Jr. for private respondents.REGALADO,J.:Presented for resolution by this Court in the present petition for review oncertiorariis the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.The records show that 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 in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.1It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator.2Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court.3On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981.4Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate.5Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings.6In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein.7On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then.8On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that:. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors.All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law.9Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.On October 15, 1991, respondent court promulgated its decision10affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:The question therefore is whether the attestation clause in question may be considered as having substantialy complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament,and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us(emphasis supplied).To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the law."11Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992,12hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made in aid of the rationale for our resolution of the controversy.1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death.13Under the Civil Code, there are two kinds of wills which a testator may execute.14the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:Art. 805. 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.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 should state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witness, it shall be interpreted to them.In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness.15hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged.16The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that they should be in writing and must have been executed in a language or dialect known to the testator.17However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even be known to the attesting witnesses.18The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same.19It 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.20It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved.21Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will,22should state (1)the number of the pages usedupon which the will is written; (2) that thetestator signed, or expressly caused another to sign, the will and every page thereofin the presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of the willand all its pages,andthatsaidwitnesses also signed the willand every page thereofin the presence of the testator and of one another.The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages;23whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses.24Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause.25The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof.26As it appertains only to the witnesses and not to the testator, it need be signed only by them.27Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses.28In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills, in the following manner:The underlying and fundamental objectives 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 with respect to the formalities in the execution of wills. . . .292. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses hereto.30Since it is the proverbial bone of contention, we reproduce it again for facility of reference:We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of 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.31InTaboada vs. Rizal,32we clarified that 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. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses 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. We agree.What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same 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 spaces 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." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "hehas signed the same and every page thereof, on the spaces provided forhissignature and on the left hand margin." What is then clearly lacking, in the final logical analysis , isthe statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.It is our considered view that the absence of that 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 admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in theformof attestation or inthe languageused therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.)While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.33We believe that the further comment of former Justice J.B.L. Reyes34regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages,and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.)3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidencealiunde, whether oral or written.The foregoing considerations do not apply where the attestation clause totally 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.35In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself.In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the indirection what in law he cannot do directly.4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in the Civil Code.One view advance the liberal or substantial compliance rule. This was first laid down in the case ofAbangan vs. Abangan,36where it was held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will, hence when an interpretation already given assures such ends, any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs. Garcia,37Aldaba vs. Roque,38Unson vs. Abella,39Pecson vs. Coronel,40Fernandez vs. Vergel de Dios, et al.,41andNayve vs. Mojal, et al.42all adhered to this position.The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases ofIn the Matter of the Estate of Saguinsin,43In re Will of Andrada,44Uy Coque vs. Sioca,45In re Estate of Neumark,46andSano vs. Quintana.47Gumban vs. Gorecho, et al.,48provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case ofGumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing withIn reWill of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), andIn reEstate of Neumark ([1923], 46 Phil., 841), and ending withSano vs. Quintana([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning withAbangan vs. Abangan([1919], 40 Phil., 476), continuing throughAldaba vs. Roque([1922], 43 Phil., 378), andFernandez vs. Vergel de Dios([1924], 46 Phil., 922), and culminating inNayve vs. Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those ofSano vs. Quintana,supra, andNayve vs. Mojal and Aguilar,supra.In the case ofSano vs. Quintana,supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and eac