FIRST DIVISION
G.R. No. L-32213 November
26, 1973
AGAPITA 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.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the 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 Pañares and Atty. Angel H. Teves,
Jr., one of them, the last named, is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. 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 also Trenwith 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 as acknowledging witnesses. 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 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. [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.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz
Palma, JJ., concur.
