GABUCAN v.

MANTA
Jan 28, 1980 | AQUINO, J.| Wills > Forms > Notarial will; Acknowledged
PETITIONERS: JOSE ANTONIO GABUCAN
RESPONDENTS: HON. JUDGE MANTA, JOSEFA VDA. DE YSALINA & NELDA ENCLONAR
SUMMARY: Probate Court dismissed probate proceeding on the ground that there was no doc stamp
affixed on the will. SC reversed the decision and held that the probate court should have merely required
that the petitioner affix the doc stamp to the notarial acknowledgment of the will, which is the taxable portion
of the document.
.
DOCTRINE: See Held #s 3 and 4.

FACTS:
1. This is about the dismissal of a petition for probate of a notarial will on the ground that it does not bear
a 35-centavo documentary stamp, which was held by the respondent Judge to be inadmissible in
evidence pursuant to Sec. 238 of the Old Tax Code (Sec. 250 of 1977 Tax Code). The said provision
disqualifies documents not affixed with the documentary stamp as evidence.
2. The probate court assumed that the notarial acknowledgment of the said will is subject to the doc stamp.
Respondent judge refused to reconsider, despite manifestation that the petitioner has already attached
the required doc stamp to the original copy of the will.
3. Petitioner filed mandamus to compel judge to allow the formers appeal. Such petition was treated as
a special civil action for certiorari under Rule 65 of the Rules of Court, and as an appeal in the interest
of substantial and speedy justice under RA 5440.
4. .
ISSUE: WN the dismissal was proper on the ground that a doc stamp was not affixed: - NO
HELD:

1. We hold that the lower court manifestly erred in declaring that, because no documentary stamp was
affixed to the will, there was "no will and testament to probate" and, consequently, the alleged "action
must of necessity be dismissed".
2. What the probate court should have done was to require the petitioner or proponent to affix the requisite
thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion
of that document.
3. That procedure may be implied from the provision of section 238 that the non-admissibility of the
document, which does not bear the requisite documentary stamp, subsists only "until the
requisite stamp or stamps shall have been affixed thereto and cancelled."
4. Thus, it was held that the documentary stamp may be affixed at the time the taxable document is
presented in evidence. If the promissory note does not bear a documentary stamp, the court should
have allowed plaintiff's tender of a stamp to supply the deficiency. Note the holding in Azarraga vs.
Rodriguez that the lack of the documentary stamp on a document does not invalidate such
document.