THIRD DIVISION
G.R. No. 122880 April 12, 2006
FELIX AZUELA,
Petitioner,
- versus
-
COURT OF APPEALS,
GERALDA AIDA CASTILLO
substituted by ERNESTO G.
CASTILLO,
D E C I S I O N
TINGA, J.:
The core of
this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the
Court is provided the opportunity to assert a few important doctrinal rules in
the execution of notarial wills, all self-evident in view of Articles 805 and
806 of the Civil Code.
A will whose attestation clause does not contain the number
of pages on which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will with all three defects
is just aching for judicial rejection.
There is a
distinct and consequential reason the Civil Code provides a comprehensive
catalog of imperatives for the proper execution of a notarial will. Full and
faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to the validity
of notarial wills — that they be acknowledged before a notary public by the
testator and the witnesses. A notarial will executed with indifference to these
two codal provisions opens itself to nagging questions as to its legitimacy.
The case
stems from a petition for probate filed on 10 April 1984 with the Regional
Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela
sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will,
consisting of two (2) pages and written in the vernacular Pilipino, read in
full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si
EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput
siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala
ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma
sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang
taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang
silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa
aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na
pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na
nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at
ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;
Pangatlo-
Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito
at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking
nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang
kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon,
sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng
kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at
Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3,
Kahilum
Pandacan,
Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No.
A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court
Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan
ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232
;
NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31,
1981
Book No. 43
;
PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8[1]
The three
named witnesses to the will affixed their signatures on the left-hand margin of
both pages of the will, but not at the bottom of the attestation clause.
The probate
petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have
resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition
was opposed by Geralda Aida Castillo (Geralda Castillo), who represented
herself as the attorney-in-fact of “the 12 legitimate heirs” of the
decedent.[2] Geralda Castillo claimed that the will is a forgery, and that the
true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering on petitioner’s
right to occupy the properties of the decedent.[3] It also asserted that
contrary to the representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her grandchildren, who were then
residing abroad. Per records, it was subsequently alleged that decedent was the
widow of Bonifacio Igsolo, who died in 1965,[4] and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.[5]
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed out that
decedent’s signature did not appear on the second page of the will, and the
will was not properly acknowledged. These twin arguments are among the central
matters to this petition.
After due
trial, the RTC admitted the will to probate, in an Order dated 10 August
1992.[6] The RTC favorably took into account the testimony of the three (3)
witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore “the modern tendency in respect to the formalities in
the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;”[7] and from this perspective, rebutted
oppositor’s arguments that the will was not properly executed and attested to
in accordance with law.
After a careful examination of the will and consideration of
the testimonies of the subscribing and attesting witnesses, and having in mind
the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization of the
interpretation of the law on the formal requirements of a will with the end in
view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has
noted that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, “Patunay Ng Mga Saksi”:
“Ang kasulatang ito, na binubuo ng _____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na
siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawa’t dahon ng kasulatan ito.”
The aforequoted declaration comprises the attestation clause
and the acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause
was not signed by the subscribing witnesses at the bottom thereof, this Court
is of the view that the signing by the subscribing witnesses on the left margin
of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the
purpose of identification and attestation of the will.
With regard to the oppositor’s argument that the will was
not numbered correlatively in letters placed on upper part of each page and
that the attestation did not state the number of pages thereof, it is worthy to
note that the will is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second page contains the
last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will.
For the same reason, the failure of the testatrix to affix her signature
on the left margin of the second page, which contains only the last portion of
the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the
will.[8]
The Order
was appealed to the Court of Appeals by Ernesto Castillo, who had substituted
his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court
of Appeals reversed the trial court and ordered the dismissal of the petition
for probate.[9] The Court of Appeals noted that the attestation clause failed
to state the number of pages used in the will, thus rendering the will void and
undeserving of probate.[10]
Hence, the
present petition.
Petitioner argues that the requirement under Article 805 of
the Civil Code that “the number of pages used in a notarial will be stated in
the attestation clause” is merely directory, rather than mandatory, and thus
susceptible to what he termed as “the substantial compliance rule.”[11]
The solution
to this case calls for the application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
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 shall state the number of pages used upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the 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
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of the
Clerk of Court.
The
appellate court, in its Decision, considered only one defect, the failure of
the attestation clause to state the number of pages of the will. But an
examination of the will itself reveals several more deficiencies.
As admitted
by petitioner himself, the attestation clause fails to state the number of
pages of the will.[12] There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of
pages in the attestation clause. Yet the blank was never filled in; hence, the
requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the
trial court, citing in the process Uy Coque v. Navas L. Sioca[13] and In re:
Will of Andrada.[14] In Uy Coque, the
Court noted that among the defects of the will in question was the failure of
the attestation clause to state the number of pages contained in the
will.[15] In ruling that the will could
not be admitted to probate, the Court made the following consideration which
remains highly relevant to this day: “The purpose of requiring the number of sheets
to be stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the
total number of sheets such removal might be effected by taking out the sheet
and changing the numbers at the top of the following sheets or pages. If, on
the other hand, the total number of sheets is stated in the attestation clause
the falsification of the document will involve the inserting of new pages and
the forging of the signatures of the testator and witnesses in the margin, a
matter attended with much greater difficulty.”[16]
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare “unanim[ity]
upon the point that the defect pointed out in the attesting clause is
fatal.”[17] It was further observed that “it cannot be denied that the x x x
requirement affords additional security against the danger that the will may be
tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material.”[18]
Against these cited cases, petitioner cites Singson v.
Florentino[19] and Taboada v. Hon. Rosal,[20] wherein the Court allowed probate
to the wills concerned therein despite the fact that the attestation clause did
not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction
which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit “D”), will
readily show that the attestation does not state the number of pages used upon
which the will is written. Hence, the
Will is void and undeserving of probate.
We are not
impervious of the Decisions of the Supreme Court in “Manuel Singson versus
Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195,” to the effect that a will may still be
valid even if the attestation does not contain the number of pages used upon
which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the
case of “Manuel Singson versus Emilia Florentino, et al., supra,” although the
attestation in the subject Will did not state the number of pages used in the
will, however, the same was found in the last part of the body of the Will:
“x x x
The law
referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the
attestation clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission of
some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 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.” (page 165-165, supra) (Underscoring supplied)
In
“Apolonio Tabaoda versus Hon. Avelino Rosal, et al.” supra, the notarial
acknowledgement in the Will states the number of pages used in the:
“x x x
We have
examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect were it
not for the fact that, in this case, it is discernible from the entire will
that it is really and actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses.
As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left margin. The other
page which is marked as “Pagina dos” comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that “this Last Will and
Testament consists of two pages including this page” (pages 200-201, supra) (Underscoring
supplied).
However,
in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial
acknowledgment wherein the number of pages of the will should be stated.[21]
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.[22] Reliance on these
cases remains apropos, considering that the requirement that the attestation
state the number of pages of the will is extant from Section 618.[23] However, the enactment of the Civil Code in
1950 did put in force a rule of interpretation of the requirements of wills, at
least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states:
“In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all
the requirements of article 805.”
In the same vein, petitioner cites the report of the Civil
Code Commission, which stated that “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. This
objective is in accord with the [modern tendency] in respect to the formalities
in the execution of wills.”[24] However, petitioner conveniently omits the
qualification offered by the Code Commission in the very same paragraph he
cites from their report, that such liberalization be “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.”[25]
Caneda v. Court of Appeals[26] features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the manner
of interpretation of the legal formalities required in the execution of the
attestation clause in wills.[27] Uy Coque and Andrada are cited therein, along
with several other cases, as examples of the application of the rule of strict
construction.[28] However, the Code Commission opted to recommend a more
liberal construction through the “substantial compliance rule” under Article
809. A cautionary note was struck though by Justice J.B.L. Reyes as to how
Article 809 should be applied:
x x x 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 these 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.[29] (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the failure to state
the number of pages of the will in the attestation clause is one of the defects
which cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that the
witnesses subscribed their respective signatures to the will in the presence of
the testator and of each other,[30] the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: “[I]t may thus be stated that the rule, as
it now stands, is that omission which can be supplied by an examination of the
will itself, without the need of resorting to extrinsic evidence, will not be
fatal and, correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be supplied except
by evidence aliunde would result in the invalidation of the attestation clause
and ultimately, of the will itself.”[31] Thus, a failure by the attestation
clause to state that the testator signed every page can be liberally construed,
since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s presence
should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.[32]
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw, despite Article 809.
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.[33] The failure to state the number of pages equates with the
absence of an averment on the part of the instrumental witnesses as to how many
pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements
under Article 805 since there is no statement in the attestation clause or
anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as enumerated under Article 805.
Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the
Code of Civil Procedure, convinced that these remained effective safeguards
against the forgery or intercalation of notarial wills.[34] Compliance with
these requirements, however picayune in impression, affords the public a high
degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.[35] The
transcendent legislative intent, even as expressed in the cited comments of the
Code Commission, is for the fruition of the testator’s incontestable desires,
and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the instrumental witnesses
appear on the left-hand margin of the will, they do not appear at the bottom of
the attestation clause which after all consists of their averments before the
notary public.
Cagro v. Cagro[36] is
material on this point. As in this case, “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.”[37] While three (3) Justices[38] considered the signature requirement
had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly
signed, rendering the will fatally defective.
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.[39]
The Court today reiterates the continued efficacy of Cagro.
Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be
“attested and subscribed by [the instrumental witnesses].” The respective
intents behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that
the witnesses are aware that the page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause
itself. Indeed, the attestation clause is separate and apart from the
disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses
in this case signed the attestation clause itself, but not the left-hand margin
of the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact must be
noted that it is the attestation clause which contains the utterances reduced
into writing of the testamentary witnesses themselves. It is the witnesses, and
not the testator, who are required under Article 805 to state the number of
pages used upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed and signed the
will and all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have stated these
elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been
validly attested to by the instrumental witnesses, as they failed to sign the
attestation clause.
Yet, there is another fatal defect to the will on which the
denial of this petition should also hinge. The requirement under Article 806
that “every will must be acknowledged before a notary public by the testator
and the witnesses” has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a separate provision,
Article 806. The non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article 805, and should be
treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila.”[40] By no manner of contemplation can those
words be construed as an acknowledgment. An acknowledgment is the act of one
who has executed a deed in going before some competent officer or court and
declaring it to be his act or deed.[41] It involves an extra step undertaken
whereby the signor actually declares to the notary that the executor of a document has attested
to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat,
even though it does not hew to the usual language thereof. A jurat is that part
of an affidavit where the notary certifies that before him/her, the document
was subscribed and sworn to by the executor.[42] Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public, while
in this case, the notary public averred that he himself “signed and notarized”
the document. Possibly though, the word “ninotario” or “notarized” encompasses
the signing of and swearing in of the executors of the document, which in this
case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary
public as a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be “acknowledged”, and not merely
subscribed and sworn to. The will does not present any textual proof, much less
one under oath, that the decedent and the instrumental witnesses executed or
signed the will as their own free act or deed. The acknowledgment made in a
will provides for another all-important legal safeguard against spurious wills
or those made beyond the free consent of the testator. An acknowledgement is
not an empty meaningless act.[43] The acknowledgment coerces the testator and
the instrumental witnesses to declare before an officer of the law that they
had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the
criminal prosecution of persons who participate in the execution of spurious
wills, or those executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of certain mindset
in making the testamentary dispositions to those persons he/she had designated
in the will.
It may not have been said before, but we can assert the
rule, self-evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the witnesses is
fatally defective, even if it is subscribed and sworn to before a notary
public.
There are two other requirements under Article 805 which
were not fully satisfied by the will in question. We need not discuss them
at length, as
they are no
longer material to the
disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and every page of the will on
the left margin, except the last; and that all the pages shall be numbered
correlatively in letters placed on the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to sign both pages of the will on
the left margin, her only signature appearing at the so-called “logical
end”[44] of the will on its first page. Also, the will itself is not numbered
correlatively in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the notion that these
two requirements be construed as mandatory.[45] Taken in isolation, these
omissions, by themselves, may not be sufficient to deny probate to a will. Yet
even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due
regard for the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in
question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
