VOL.

118, NOVEMBER 5, 1982 195

Taboada vs. Rosal

*
No. L-36033. November 5, 1982.

IN THE MATTER OF THE PETITION FOR THE

PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner, vs. HON.
AVELINO S. ROSAL, as Judge of Court of First Instance of
Southern Leyte, (Branch III, Maasin), respondent.

Words and Phrases; Testamentary Succession; Wills; The

terms “attestation” and “subscription,” defined.—It must be noted
that the law uses the terms attested and subscribed. Attestation
consists in witnessing the testator’s execution of the will in order
to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses’ names upon the same
paper for the purpose of identification of such paper as the will
which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).

Same; Same; Same; The attesting witnesses may sign at the

lefthand margin of the pages of a will instead of at the end of the
will.—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.

Same; Same; Same; The law on the formal requirements of a

will

________________

* FIRST DIVISION.

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196 SUPREME COURT REPORTS ANNOTATED

Taboada vs. Rosal

should be liberally construed. While perfection in drafting is

desirable, unsubstantial departures should be ignored.—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 ex-ecution 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.”

Same; Same; Same; Failure of attestation clause to state

number of pages would have been fatal had not the Will at bar
consisted only of two pages and the acknowledgment clause states
that the Will has only two pages.—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”.

PETITION for review the orders of the Court of First

Instance of Southern Leyte, Br. III, Rosal, J.

The facts are stated in the opinion of the Court.

     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
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 VOL. 118, NOVEMBER 5, 1982 197
Taboada vs. Rosal

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 parte
praying for a thirty-day period within which to deliberate
on any step to be taken as a result of the disallowance of
the will. He also asked that the ten-day period required by
the court to submit the names of intestate heirs with their
addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the motion
together

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198 SUPREME COURT REPORTS ANNOTATED

Taboada vs. Rosal
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
filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise
denied because of the petitioner’s failure to comply with the
order requiring him to submit the names of the intestate
heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article
805 of the Civil Code require that the testatrix and all the
three instrumental and attesting witnesses sign at the end
of the will and in the presence of the testatrix and of one
another?
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 latter 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.”

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Taboada vs. Rosal

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 all the three subscribing witnesses must also sign
at the same place or at the end,in the presence of the
testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient compliance
to sign the page, where the end of the will is found, at the
left hand margin of that page.
On the other hand, the petitioner maintains that Article
805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the extrinsic
validity of the will that the signatures of the subscribing
witnesses should be specifically located at the end of the
will after the signature of the testatrix. He contends that it
would be absurd that the legislature intended to place so
heavy an import on the space or particular location where
the signatures are to be found as long as this space or
particular location wherein the signatures are found is
consistent with good faith and the honest frailties of
human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the
will must be subscribed or signed at its end by the testator
himself or by the testator’s name written by another person
in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
It must be noted that the law uses the terms attested
and subscribed. Attestation consists in witnessing the
testator’s execution of the will in order to see and take note
mentally that those things are done which the statute
requires for the execution of a will and that the signature
of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses’ names upon
the same paper for the purpose of identification of such
paper as the 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.

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Taboada vs. Rosal

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 it 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 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
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Taboada vs. Rosal

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
inducting this page”.
 In Singson v. Florentino, et al. (92 Phil. 161, 164), this
Court made the following observations with respect to the
purpose of the requirement that the attestation clause
must state the number of pages used:

“The law referred to is article 618 of the Code of Civil Procedure,

as amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which the
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. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause
must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde,but by a consideration or
examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of
the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out
of the rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being defeated by
purely technical considerations.”

Icasiano v. Icasiano (11 SCRA 422, 429) has the following

ruling which applies a similar liberal approach:

“x x x 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

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Taboada vs. Rosal

inadvertence of a single witness over whose conduct she

had no control, where the purpose of the law to guarantee
the identity of thetestament and its component pages is
sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, asstated
 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
the 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 will and to conduct
further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.

          Melencio-Herrera (Acting Chairman), Plana,

Vasquez, and Relova, JJ., concur.
     Teehankee, J., on official leave.

Petition granted. Orders set aside.

Notes.—Will of Testator is the first and principal law in

the matter of testaments. (Rigor vs. Rigor,89 SCRA 493.)
It is presumed that a witness to a will has the
qualifications prescribed by law, unless the contrary is
established by the oppositor. (Gonzales vs. Court of
Appeals,90 SCRA 183.)
A will duly acknowledge before a notary public has in its
favor the presumption of regularity, as for example,
regarding, the date when the notary was furnished the
residence certificate of the witnesses. (Gonzales vs. Court of
Appeals,90 SCRA 183.)

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